What is a criminal record?

If you are found guilty of a criminal offence by a court, the offence is recorded against your name and held on the Police National Computer. This page tells you about your employment rights if you are working or trying to find a job with a criminal conviction, and signposts you to available resources and support. [see How to survive a criminal charge, conviction or police caution at work]

The Disclosure and Barring Service (DBS)

Disclosure and Barring Service checks contain information about convictions, cautions, reprimands, and warnings which are on the Police National Computer.

The Rehabilitation of Offenders Act 1974

Finding a job when you have a criminal record is difficult, but you can do it.  The Rehabilitation of Offenders Act 1974 (ROA) allows some criminal convictions to be ignored after a prescribed period. The intention of the act is to make sure that people do not have a lifelong blot on their records because of a relatively minor offence in their past. ROA is “an Act to rehabilitate offenders who have not been re-convicted of any serious offence for periods of years, to penalise the unauthorised disclosure of their previous convictions, to amend the law of defamation, and for purposes connected therewith.”

The Act does not apply to certain jobs such as those involving access to children, vulnerable adults, and other sensitive positions. The full list of exceptions is contained in the Exceptions Order of the Act.

Spent Convictions

ROA aims to improve the chances of people with convictions being fully rehabilitated into society by removing some of the barriers that they face. Cautions and convictions become ‘spent’ after a specified period of time. This specified period is different depending on the sentence that a person was given.

• Once a caution or conviction becomes ‘spent’, a person has to be treated as rehabilitated and they don’t have to declare the conviction for things like job applications and insurance. [ see Automatically unfair reasons for dismissal]
• You don’t need to disclose a spent conviction to an employer for most jobs, even if you are asked.
• Spent convictions will not come up on a basic criminal record check, but will show on standard and enhanced criminal record checks.
• You have to disclose spent convictions for particular jobs if you are asked. These are jobs that need a standard or enhanced criminal record check, and the prospective employer can refuse to employ you or fire you in such a situation.
• You do not need to disclose them to insurers when purchasing insurance.
• You might need to disclose spent convictions when travelling outside of England and Wales.
• They remain on your record for life.

Spent convictions and work

A prospective employer would want to make sure that you don’t have any previous criminal convictions. The fact that you have a conviction does not automatically mean that you are not suitable for the job, particularly where your conviction does not impact on your job.

• An employer will be acting unlawfully if they refuse to employ a job applicant on the grounds that they have a spent conviction or that they have declined to disclose a spent conviction. [see Automatically unfair reasons for dismissal]
• S4 (2) ROA 1974 allows you to answer questions about your criminal record in a job interview or application form as if you have no convictions.
• For certain types of employment, it is unlawful for an employer to take convictions into account when deciding whether or not to employ a person. You may be able to sue an employer for “breach of statutory duty” of this happens.
• Information about a job applicant’s criminal convictions is sensitive personal data under GDPR and the Data Protection Act 2018.

There are particular roles for which you must disclose your spent convictions. These jobs are excluded from the ROA. The following are examples of jobs where you have to declare spent convictions;

• Doctors, dentists, midwives and nurses
• Lawyers
• Accountants
• Police officers
• School-based jobs
• Jobs with social services providers
• Jobs that involve supervising or training young people

In these jobs, if you are asked to disclose spent convictions, you do not have the legal right to say no. If you don’t declare when asked you could face prosecution and dismissal.  The vast majority of jobs and professions are not covered by these exemptions and a request to disclose spent convictions can be ignored unless the position is exempt. Any job that requires a standard or enhanced disclosure will show spent convictions and cautions, so be upfront in applications and interviews.

Unspent Convictions

If your conviction is unspent, then you do not have the legal protection of the ROA 1974 and cannot answer “no” when asked if you have a criminal record. This means that there is nothing to prevent a potential employer from asking you the details of those convictions if you admit to having a criminal record.

• If an employer asks you about an unspent conviction, you have to disclose it. They can legally refuse to employ you or discriminate against you.
• Unspent convictions are disclosed on basic, standard and enhanced criminal record disclosures.
• You have to disclose the when applying for products and services, such as insurance, a mortgage or renting a house.
• You can be prosecuted for failure to disclose when asked.

If your prospective or current employer asks, and you don’t declare an unspent conviction, you can be dismissed when your employer finds out. Your employer could sue you for breach of contract or even criminal prosecution.

If your prospective employer does not ask about your unspent convictions, then you don’t have to declare them. If your employer did not ask and later finds out and dismisses you, you may have an unfair dismissal claim. [see How to survive a criminal charge, conviction or police caution at work]

Updated: 14/03/2020