As we predicted last year the Employment Rights Bill goes some way to addressing a gap in the current law protecting employees with  spent convictions for criminal offences.  But it doesn’t go as far as the rehabilitation of offenders legislation promises. And it may have unexpected consequences and lead to employers reassessing whether to ask potential recruits about convictions and how they respond.  

So what’s the issue?

The 1974 Rehabilitation of Offenders Act introduced protection for people who had been convicted of criminal offences.  In most cases after a set period (related to the sentence imposed) the individual is treated as statutorily rehabilitated; their conviction is considered “spent” and they are treated as someone who has never been convicted.  Certain convictions are never spent including sentences of imprisonment for life or for over four years for serious violent, sexual or terrorist offences.

For some roles, employers can take account of convictions even if they are spent.  These include roles working with children or vulnerable adults and in certain jobs in regulated sectors such as financial services (more on this below under Regulated Sectors). 

The rehabilitation of offenders legislation says that a spent conviction or a failure to disclose a spent conviction is not a proper ground: 

• for refusing an individual’s job application; or
• for dismissing the individual; or 
• for prejudicing the individual in any other way. 

But despite what the rehabilitation of offenders legislation appears to promise, it provides no specific way to enforce those rights.  So, someone who is refused a job because of conviction that is spent can do nothing.  

What does the Employment Rights Bill do?

The Employment Rights Bill goes some way to rectifying the ineffective protection.  When the Bill becomes law, dismissals will be automatically unfair if the employer: 

• dismisses an employee because of a conviction that is spent; 
• signs up to an employment contract with the employee but ends it because of a spent conviction before the employee actually starts work. 

An employee who is automatically unfairly dismissed over a spent conviction could claim compensation. There’d be no “basic award” unless the employee has two years’ service, but there would be a compensatory award.

But there will still be no protection for an employee who is refused a job because of a conviction that is spent.  In effect, protection will only kick in once the employer and employee have entered an employment contract.

Challenge for employers

If an employer decides to ask about criminal convictions, it faces the challenge of knowing where it stands.  It may of course decide that a conviction disclosed by the employee is not relevant to the work that the employee would do or should be disregarded because it occurred some time before.

But if it decides to dismiss because of a conviction that happens to be spent, the dismissal will be unfair. The rules on spent convictions are relatively complicated and, in practice, it may not be easy to tell whether a conviction is, legally, spent.  Experience suggests that people with convictions may not know whether or not their conviction is spent and may not have much more than a general idea of precisely what they were convicted of, when they were convicted or what the sentence was.  If a conviction is spent the employer will be liable if it dismisses – even if what the employee has said turns out to be wrong.  

From a risk management perspective, an employer asking about criminal records should:

1. Explain that there is no need to disclose convictions that are spent, referring to guidance on spent convictions  for example the guidance on the Rehabilitation of Offenders Act 1974 and the Exceptions Order 1975.  

2. If an employment contract has been entered into, and the employer is considering dismissing because it later emerges that the employee has a criminal record, check the status of that record carefully before terminating the contract. 

In practice, the easiest way to find out whether a conviction is spent is to ask the employee to do a basic DBS check – which should show only unspent convictions.  Doing that may of course damage the relationship with the employee and, if the conviction turns out to be spent, care needs to be taken to avoid constructive dismissal. 

Options for an employer

An employer considering dismissing because of a conviction needs to grapple with both the law on rehabilitation of offenders and data protection.  

Data protection

Information on criminal offences and convictions has special protection under data protection law – even if it is just information that an individual has no convictions.  

In brief, in order to ask for that information, an employer needs to 

• Show it has a lawful basis for processing the data.  
  
  Typically employers rely on “legitimate interests”.  If an employer relies on that basis, it needs to be able to show that the processing is “necessary” to achieve those interests.  The Information Commissioner suggests that an employer carries out a light-touch Legitimate Interests Assessment – though this is not mandatory.  

• Show that it can satisfy a special condition for processing criminal record data.  
  
  In general, the most relevant is likely to be the condition that relates to employment which is met if processing is “necessary” for the purposes of obligations or rights conferred by law.  The employer needs to identify a specific obligation or right conferred by law (not just a contract that it is party to).  Another potentially relevant condition relates to prevention of unlawful acts.  The employer must be satisfied that the processing is necessary for the purposes of prevention of an unlawful act.  

• Check it has an Appropriate Policy Document – a document outlining compliance measures and retention policies for criminal record information.  The ICO has produced a helpful template.

The Information Commissioner also recommends that an employer carry out a Data Protection Impact Assessment. 

Be clear what you are doing – and why 

Taking account of the constraints of data protection law, think carefully about whether or not to ask about criminal convictions and, if so why doing so is necessary and how you will assess the information.  It does not need to be literally “necessary” – but it should be more than just “useful”.  It should be targeted and proportionate.

Think about timing

As an employer you should comply with the “data minimisation principle”.  Data processed should be limited to what is necessary for the purposes for which it is processed.  In general, it is not necessary to collect and hold criminal record information on all job applicants.  It is sufficient to ask for the information only from the person that you propose to recruit. 

If an employee has a criminal record and you propose to dismiss 

Check whether the conviction is spent.  See above. 

Regulated sectors

For certain jobs and activities, there are exceptions to the normal rules on spent convictions.  Where these exceptions apply, someone may be required to disclose a conviction even though it is spent (though there is a carve out for certain old and minor offences which are treated as “protected” and do not need to be disclosed).  The employer can also ask for the same information by applying for a “standard” or “enhanced” criminal record check.  

There is a long list in the order setting out exceptions to the normal rehabilitation of offenders rules.  These are summarised in this guidance.

In brief, the exceptions include: 

• Working with children or vulnerable adults 
• Employment in healthcare professions (including doctors, dentists, nurses and pharmacists),
• Employment in the legal profession, courts or law enforcement
• Employment in the financial sector (including chartered and certified accountants, actuaries and all positions for which the Financial Conduct Authority or the competent authority for listings are entitled to ask exempted questions to fulfil their obligations under the Financial Services and Markets Act 2000).  This is particularly relevant in connection with assessing fitness and propriety in relation to controlled functions and the senior managers regime.

In these contexts, the person being asked to disclose convictions must be told that the Exceptions Order applies and that spent convictions must be disclosed. 

Further information

A specialist charity called Unlock which supports people with criminal records works to help businesses navigate the complexities of criminal record policies.  It provides advice, training and consultancy for employers seeking to design inclusive, compliant processes for people with criminal records.  Its website provides detailed information on the rules on rehabilitation of offenders.  

Unlock is working with the Responsible Business Initiative for Justice (RBIJ) to understand how businesses approach criminal records and the risks and benefits of recruiting people with records.  It is carrying out an anonymous survey on the issues that business face.

The CIPD Trust has produced a helpful guide to recruiting, employing and retaining people with convictions.  

If you would like to discuss any of the issues raised above, please contact Zoe Ingenhaag or Steve Lorber.