Convicted Persons, Employment Of
Key points
§ The Rehabilitation of Offenders Act 1974 effectively entitles a person with a previous criminal record to withhold information about any spent convictions when he (or she) applies for a job. Although there are exceptions to this general rule (see below), the rationale behind the 1974 Act is to encourage the rehabilitation of people whose criminal records would otherwise deny them an opportunity to seek, obtain or retain gainful employment.
§ A conviction becomes spent if the person in question is not again convicted of an indictable offence within a specified period of years beginning with the date on which he (or she) was convicted and sentenced. The length of the rehabilitation period is determined by the nature of the offence, the length of sentence imposed by the court, and the age of the offender at the material time.
| Note | An 'indictable offence' is an offence triable by a judge and jury in the Crown Court. |
Effect of a 'spent' conviction
§ Once a conviction has become spent, the person convicted is treated in law (subject to exceptions) as if the offence and the conviction had never occurred. Although there is nothing to prevent a prospective employer asking a job applicant whether he (or she) has ever been convicted of an indictable offence inside or outside Great Britain, or served time in prison, or been in trouble with the police, the candidate is equally entitled to answer 'No' in relation to any convictions that are spent. He cannot lawfully be refused employment for failing to reveal details of those convictions; nor can he be dismissed or otherwise prejudiced if, at a later date, his employer discovers that he concealed details of a spent conviction at the employment interview. Section 4(2) of the Act states that 'where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly'.
§ It follows that any employee dismissed for having (or concealing) a spent conviction would be justified in presenting a complaint of unfair dismissal to an employment tribunal – given that the reason for his (or her) dismissal is unlikely to amount to 'some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held' (but see Excepted occupations below). But, to qualify to bring a complaint of unfair dismissal, such an employee would need to have been continuously employed for at least one year and have been under normal retiring age at the effective date of termination of his contract of employment. Without those qualifying conditions, his only other recourse would be to pursue an action for damages in the ordinary courts.
| Note | In Property Guards Limited v Taylor & Kershaw [1982] IRLR 175, the EAT held that the dismissal of a security guard, for failing to disclose a 'spent' conviction, was unfair – the more so as the job of security guard (although requiring a person of good character) is not one of the excepted occupations listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (see Excepted occupations below). |
Sentences excluded from rehabilitation
§ Certain sentences are excluded from rehabilitation even if the person convicted is released from prison (for whatever reason) before serving- out his full sentence. These are:
o a sentence of imprisonment for life;
o a sentence of imprisonment, youth custody, detention in a young offender institution, or corrective training for a term exceeding 30 months;
o a sentence of preventive detention;
o a sentence of detention during Her Majesty's pleasure, or for life, or under section 205(2) or (3) of the Criminal Procedure (Scotland) Act 1975, or for a term exceeding 30 months, passed under section 53 of the Children & Young Persons Act 1933 (young offenders convicted of grave crimes) or under section 206 of the 1975 Act (detention of children convicted on indictment) or a corresponding court martial punishment; and a sentence of custody for life.
Any other conviction and sentence is subject to rehabilitation under the 1974 Act.
Unauthorised discovery or disclosure of 'spent' convictions
§ In practice, it is unlikely that an employer will learn of a spent conviction through official channels. Indeed, if he attempts to obtain such information from police or court records (or from records maintained by a local authority or other official agencies), he will meet with a sharp rebuff. If he obtains any information concerning a spent conviction by fraud, dishonesty or bribe, he is guilty of an offence and is liable, on summary conviction, to a fine of up to £5,000 and/or to imprisonment for a term not exceeding six months.
§ It is an offence also for any person having custody of or access to official records to reveal information about a person's convictions to a third party. The penalty on conviction is a fine of up to £2,500.
Excepted occupations
§ Under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, as amended, and by the Osteopaths Act 1993 and the Chiropractors Act 1994, convicted persons seeking employment in the occupations listed below do not enjoy the protection of the 1974 Act. Thus, any person with a spent conviction applying for employment as a:
o medical practitioner;
o barrister, advocate (in Scotland) or solicitor;
o chartered accountant, certified accountant;
o dentist, dental hygienist, dental auxiliary;
o veterinary surgeon;
o nurse, midwife;
o ophthalmic optician, dispensing optician;
o pharmaceutical chemist;
o or any profession to which the Professions Supplementary to Medicine Act 1960 applies;
o registered osteopath; or
o registered chiropractor,
must reveal details of any and all convictions, including spent convictions. Such information must also be disclosed in relation to:
o judicial appointments;
o employment in the police force, or in the prison service, or as a traffic warden, or in certain occupations involving the provision of social services or health services; and
o work concerned with the provision to persons aged under 18 of accommodation, care, leisure and recreational facilities, schooling, social services, supervision or training.
Other regulated occupations include that of firearms dealer; a director, controller or manager of an insurance company; a dealer in securities; a manager or trustee under a unit trust scheme; a person applying to the police or to a court of summary jurisdiction for a licence to keep explosives; and a person seeking a Gaming Board licence.
§ Answers to questions relating to any offence involving fraud or dishonesty, which are put to a person by a building society (or by or on behalf of the Building Societies Commission), in order to assess the suitability of that person to be a director or other officer of a building society, must likewise reveal details of all such convictions (spent or otherwise).
References
§ An employer may disclose details of a spent conviction in a reference given to a prospective employer, always provided that the disclosure is made without malice or as the result of information improperly obtained. Otherwise, he could be sued for damages for libel and will not be entitled to rely upon the defence of 'justification'. If he chooses not to reveal that information and is subsequently sued by the second employer for the tort of deceit, the 1974 Act provides him with a statutory defence. Section 4(2)(b) states that any person questioned by another person about an employee's (or would-be employee's) previous convictions 'shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction'.
On balance, an employer would be well-advised to keep such information to himself.
Personnel records
§ Personnel records containing details of employees' convictions should likewise be kept well away from prying eyes, bearing in mind also that any convictions that were not spent at the time those records were prepared could well become spent with the passage of time.
Police Act 1997
§ Provisions in the Police Act 1997 enable employers who are suspicious (or remain unconvinced) that people applying for excepted occupations and other sensitive jobs (including work with children and young persons under 18) are telling the whole truth when claiming that they have no criminal convictions (spent or otherwise).
The scheme is administered by the Criminal Records Bureau (CRB) (an executive agency of the Home Office). The Bureau may issue:
a. a criminal conviction certificate (CCC);
b. a criminal record certificate (CRC); or
c. an enhanced criminal record certificate (ECRC)
to any individual (or, where appropriate, to any registered body corporate or unincorporate) who or which applies for such a certificate (using a form prescribed for that purpose) and who pays the prescribed disclosure fee (£12). The registration fee for bodies corporate or unicorporate is £300 (and for each countersignatory: £5).
Criminal conviction certificate
§ An employer seeking to fill a particular vacancy (eg, as a nightwatchman or as a security guard) may require a job applicant to produce a criminal conviction certificate (CCC) in support of his (or her) application. The latter will give prescribed details of the applicant's every criminal conviction (other than a conviction which has since become spent within the meaning of the Rehabilitation of Offenders Act 1974). If there is no record of any unspent convictions, the CCC will state that fact (ibid. section 112).
§ An applicant who has been issued with a CCC will not normally be issued with another CCC for a prescribed period. In this context, the term 'prescribed' means prescribed by regulations made by the Secretary of State.
Criminal record certificate
§ A criminal record certificate (or CRC) is a certificate which gives the details of every conviction (including every spent conviction) and every police caution in respect of an offence admitted to by the applicant at the time the caution was given. A CRC may be required by a would-be employer in support of a person's application for employment in (or appointment to) one of the excepted occupations listed earlier in this section. As with a CCC, a CRC may also state that the applicant has had no criminal convictions or cautions (ibid. section 113).
§ Every application for a CRC using the prescribed form must be counter- signed by a registered person and be accompanied by the prescribed fee. A copy of the CRC, once issued, will be sent directly to that registered person. The term 'registered person' means either a body corporate or unincorporate (eg, a private or public limited company, or a partnership), or a person appointed to an office by virtue of an Act of Parliament, or an individual who employs others in the course of a business. The names of all persons or bodies registered for these purposes will be listed in a register maintained by the Secretary of State.
§ A body or individual applying for registration must satisfy the Secretary of State that he (or she) is likely to ask exempted questions or, in the case of a body corporate, is likely to countersign applications for CRCs at the request of bodies or individuals asking such questions. Exempted questions are questions relating to an excepted occupation (see above) in response to which a job applicant is obliged to disclose details of every criminal conviction, spent or otherwise.
Enhanced criminal record certificate (ECRC)
§ An enhanced criminal record certificate (ECRC) will be available to individuals applying for positions which involve regular caring for, training, supervising or being in sole charge of young persons under 18. It will also be available to people applying for certain statutory licensing purposes (see below) and for those being considered for judicial appointments. As is the case with the criminal records certificate (CRC), the ECRC will contain information on 'spent' and 'unspent' convictions and police cautions. It will also include information from local police files including elevant non-conviction information. It could also be made available to those caring for vulnerable adults (per the Police Act (Enhanced Criminal Record Certificates) (Protection of Vulnerable Adults) Regulations 2002 and the eponymous Scotland Regulations 2002 (ibid. sections 115 and 116).
§ The procedure for applying for an ECRC is the same as that for a CRC except that an application for an ECRC must be accompanied by a statement by the registered person who countersigns it that the certificate is required for the purposes of an exempted question asked:
a. in the course of considering the applicant's suitability for a position (whether paid or unpaid) which involves regularly caring for, training, supervising or being in sole charge of persons under 18; or for a position with the same or similar duties and responsibilities which is of a kind specified in regulations made by the Secretary of State; or
b. for a purpose relating to:
o gaming certificates, certificates of consent or licences as prescribed by the Gaming Act 1968;
o registration or certification under the Lotteries & Amusements Act 1976 (societies, schemes and lottery managers);
o a licence under the National Lottery, etc Act 1993 (running or promoting lotteries);
o registration under the Children Act 1989 or under article 118 of the Children (Northern Ireland) Order 1995 (child minding and day care);
o the placing of children with foster parents in accordance with any provision of, or made by, the Children Act 1989 or the Children (Northern Ireland) Order 1995 (welfare of privately fostered children);
o the approval of any person as a foster carer by virtue of the relevant provisions of the Social Work (Scotland) Act 1968, the exercise by a local authority of their functions under the Foster Children (Scotland) Act 1984, or the placing of children with foster parents by virtue of section 70 of the Children (Scotland) Act 1995 (disposal of referral by children's hearing).
Evidence of identity
§ A person applying for a CCC, CRC or ECRC will be expected to produce evidence of his (or her) identity. If there is any doubt as to the true identity of an applicant, he may be required to have his fingerprints taken. Regulations dealing with the taking of fingerprints may make provision requiring their destruction in specified circumstances and by specified persons (ibid. section 118).
Offences: unauthorised disclosure
§ Any member, officer or employee of a body registered for the purposes described above who discloses information contained in a CRC or ECRC is guilty of an offence under the 1997 Act unless he (or she) discloses it in the course of his duties to other members, officers or employees of that registered body who have a direct interest in the information contained in the certificate. The penalty on summary conviction for unlawful disclosure is imprisonment for a term not exceeding six months and/or a fine of up to £1,000 (ibid. section 124).
§ However, no offence is committed if the information contained in a CRC or ECRC is disclosed:
a. with the written consent of the applicant for the certificate; or
b. to a government department; or
c. to a person appointed to an office by virtue of any enactment; or
d. in accordance with an obligation to provide information under or by virtue of any enactment; or
e. for the purpose of answering an exempted question in relation to an application for employment in (or appointment to) an excepted occupation within the meaning of the Rehabilitation of Offenders Act 1974 (as discussed earlier in this section); or
f. for some other purpose specified in regulations made by the Secretary of State (ibid.).
§ For further information on the work of the CRB (registration, applications forms, codes of practice, publications, frequently asked questions, etc) the reader is commended to websites www.crb.gov.uk and www.disclosure.gov.uk. Employers may write to the CRB at PO Box 110, Liverpool, L3 6ZZ or telephone the CRB's Information Line on 0870 90 90 811.
Data protection implications
§ Under the Data Protection Act 1998, sensitive information, including information about an employee's criminal convictions, may not be stored in a paper-based or computerised filing system without the employee's express permission – unless there is some justification for the keeping of that information and appropriate measures are taken to prevent unauthorised access to it.
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