Should job applicants have to disclose their spent criminal convictions?
Upon being convicted of an offense, an entry is made on a persons Criminal Record. Upon a specified period passing, as prescribed by the Rehabilitation Offender Act 1974, the offense is defined as a 'spent conviction'. The period depends on the seriousness of the offense and some convictions will never become spent under the Act. Even if these convictions are considered as spent, should they still be disclosed on application forms for employment?
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An employer can state that spent convictions are to be disclosed
If on an application form an employer states that spent convictions are to be disclosed then a person is required to disclose such convictions[[ROA 1974 (Exceptions) Order 1975 SI1975/1025; Regulation 3 (1)(a)]]. Employment is deemed to be a position of trust and therefore a person is liable if they do not disclose such information when asked. This is the common sense position and seeks to ensure that the employer knows the background of the person they are taking on.
This is an exception to the general rule; as indicated by the name of that order 'Exceptions'. The Rehabilitation of Offenders Act 1974 (ROA) states that even if asked an applicant does not have to disclose spent convictions [[s4(2) ROA 1974]]. The order cited opposite was placed there in order to ensure that employers could ask and be required to be told about spent convictions if there was a need to assess a persons suitability for a specific role which involves a great deal of trust. This is not a general trust between employer and employee but in specific roles in which sensitive data and vulnerable people are dealt with. In order for employers to require the disclosure of spent criminal convictions they must state when asking the question that an exception to the ROA applies and they must state which exception that is[[ROA (Exceptions) Order 1974, Regulation 3(a)]].
Provision of care services requires such disclosure
Any office or employment concerned with the provision of care services which enables a person to have access to vulnerable adults is entitled to require such information is disclosed to them[[ROA (Exceptions) Order 1975; Schedule I Part II Regulation 12]]. Upon this information being given an employer would be entitled to treat that person as other than rehabilitated and use the information to assess the suitability of that person for the job position [[ROA (Exceptions) Order 1975; Regulation 4]].
Whilst this may be what the law requires, it is inherently unfair and contradictory to state that people are 'rehabilitated' once a certain period has passed, which is the general position in the ROA, then to go on to say that in fact, the person is not rehabilitated when it comes to certain professions. Either a person is rehabilitated or not. We should not define someone as rehabilitated only for certain mundane professions only to be classified as not rehabilitated for other professions.
the information does not appear on the basic criminal record check
Upon making an application to the Criminal Record Bureau, an individual can pay to have their criminal record disclosed to their employer by way of a certificate. The Criminal Record Bureau states that their aim is to "help protect children and vulnerable adults by providing a first-class service to support organisations recruiting people into positions of trust" [[http://www.crb.homeoffice.gov.uk/]] With this being the objective of the Government lead organisation, surely the level of disclosure they see fit is at the adequate level. Their basic level of disclosure, to which all employers are entitled to request, spent convictions are not disclosed. Therefore, there is no reason for applicants to disclose spent criminal convictions on job applications.
This is only one of the three types of criminal record checks that a person can obtain. There are also standard disclosures and enhanced disclosures. Both of these types of disclosure mention the spent convictions and also any cautions. Therefore, it is unrealistic to merely look at the basic criminal record check stating this as conclusion to the fact that people do not need to disclose their spent convictions on job applications.
s4(1) Rehabilitation Offenders Act 1974
This section states that a person who has served their sentence in prison or otherwise, and the specified rehabilitation period has passed, the person shall be counted as rehabilitated and shall be treated as a person who had never been convicted of that offence. Given that the person is to be treated as if the conviction never occurred, there is no need for the applicant to disclose their spent criminal conviction. Further to this, s4(2) states that if a question on the application form asks about convictions, the applicant is under no duty to disclose their conviction.
Whilst the law may allow an applicant not to disclose their conviction, it may actually be to their benefit to disclose such spent convictions. If an employer subsequently finds out that the employee does have a conviction, even if it is spent, it will result in a significant lack of trust in the relationship. This could mean that the employer would try and find any reason to dismiss the employee, or make their working lives untenable.
What do you think?