An editorial discussing the laws surrounding employing someone with a criminal record.

Peninsula Team

April 07 2014

Employers are usually interested in a potential employee’s previous history including, perhaps, any criminal convictions. You should be aware, though, that certain criminal offences could be erased from a person’s record after set periods of time. Legislation sets these time periods after which a criminal is deemed to have been rehabilitated and the offence ‘spent’. A spent conviction is one which should play no part in the recruitment and selection process. The time periods of rehabilitation increase with the severity of the offence, and were amended in England and Wales from March 2014. Rehabilitation periods in Scotland remain unaffected by the March changes. Briefly, in England and Wales, cautions, reprimands and warnings are deemed to be spent immediately, imprisonment for up to 6 months is spent 2 years after the end of the sentence; imprisonment for 6 – 30 months is spent 4 years after the end of the sentence; imprisonment for more than 30 months but less than 4 years is spent 7 years after the end of the sentence. A sentence of more than 4 years is never spent. In Scotland, sentences of more than 30 months are never spent. Rehabilitation periods are shorter when the offence was committed when an individual was younger than 18. Employers should generally not ask for information on spent convictions, whether on application forms or during an interview. Refusal to employ someone on the basis of a spent conviction is unlawful. Dismissal on the basis of a spent conviction is automatically unfair – so an employee is able to bring this claim from day one of employment. There rules are different, however, where the employment concerned is one for which offences are never considered as spent e.g. in certain legal, medical or accountancy professions, or where care of children or vulnerable adults is concerned. Therefore the type of job for which you are recruiting will determine whether you can ask about spent convictions or not. Many employers make job offers subject to the provision of satisfactory criminal records checks where these are legally required for certain jobs in the provision of care. Disclosure of spent and unspent convictions will be provided and this can be accessed via the Disclosure and Barring Service (previously known as the Criminal Records Bureau) or Disclosure Scotland. Access Northern Ireland provides this service in Northern Ireland. In Scotland, employers must check PVG Scheme membership for job in the care industry. Unless information on a criminal records check identifies the individual as legally unsuitable to perform a role, the employer could consider the following during the recruitment process: - the person’s age at the time of the offence; - how long ago the offence took place; - whether it was an isolated offence or part of a pattern of offending; - the nature of the offence; - its relevance to the post or position in question; and - what else is known about the person’s conduct before and since the offence. Once again if you are facing a similar situation then contact the Peninsula Advice Service on 0844 892 2772. 

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