The Rehabilitation of Offenders Act 1974 supports the reformed offenders entering the workplace. Following a specified period of time – which varies according to the sentence – an offender’s cautions and convictions become ‘spent’ and the offender is regarded as rehabilitated.
This means the Act treats a rehabilitated person as if he or she had never committed/been charged with/charged or prosecuted for/convicted or sentenced for the offence – which means the offender is not required to declare their spent caution/convictions when applying for most jobs.
The Act also means that an employer cannot refuse to employ someone, or dismiss someone, because he or she has a spent caution or conviction (unless there is an Exception Order, see below).
All cautions and convictions may eventually become spent, with the exception of prison sentences or sentences of detention of young offenders of over four years, and with the exception of all public protection sentences, regardless of the length of the sentence. Public protection sentences are imposed for specific sexual and violent offences.
The changes introduced on 10th March 2014, shorten the Rehabilitation Periods required – i.e. the length of time before a caution or conviction becomes ‘spent’.
This has been done by the government in order to tackle re-offending and get previous offenders back into work. Government research shows that former offenders who gain employment are less likely to re-offend.
Rehabilitation Periods are ones that either:
- Run beyond the end of the sentence. They’re made up of the total sentence length plus an additional period that runs from the end of the sentence called the ‘buffer’ period.
- Or start from the date of conviction or the date the penalty was imposed.
The new Rehabilitation Periods with buffer periods are as follows (offenders who are under 18 at the date of conviction have the ‘buffer’ periods halved) – the buffer period below applies from the end date of the sentence:
- Custodial sentences, which include a suspended sentence, of over four years (including life imprisonment) or a public protection sentence – never spent;
- Custodial sentences of over 30 months and up to and including 48 months – sentence period plus seven year buffer period;
- Custodial sentences of over six months and up to and including 30 months – sentence period plus four year buffer period;
- Custodial sentences of six month or less – sentence period plus two year buffer period;
- Community order or youth rehabilitation order – order length plus one year buffer period.
The new Rehabilitation periods for sentences that do not have buffer periods and where the rehabilitation period runs from the date of conviction (offenders who are under 18 at the date of conviction have the ‘buffer’ periods halved) are as follows:
- Fine – one year;
- Conditional Discharge – for the period of the order;
- Conditional Caution – three months or when the caution ceases;
- Compensation Order – when the order is paid in full.
For information on the rehabilitation periods for driving offences, read here.
These changes are retrospective, which mean they apply to people convicted before March 2014.
There are some jobs where both spent and unspent convictions and cautions must be disclosed. These are called ‘exceptions’, and where these exist, an Employer will be eligible for a standard and sometimes an enhanced criminal records disclosure certificate from the DBS (Disclosure and Barring Service – formerly the Criminal Records Bureau [CRB]).
Jobs covered in the Exceptions Order include work with children and other people in vulnerable circumstances, work in healthcare professions, national security, law enforcement and the legal system, the prison and probation services and some financial positions.
What an employer can ask a potential or current employee about (in relation to convictions and cautions):
- They can ask you about unspent convictions and cautions;
- They cannot ask you about spent convictions and cautions (unless the job is covered by an Exception Order).
Therefore, offenders with spent convictions don’t have to disclose these for most jobs. Until March 2015, employers could use subject access rights under the Data Protection Act to obtain certain records from the police about potential or existing employees, or self-employed individuals, as a condition of their employment. This was prohibited on 10th March 2015 so employers can no longer require an individual to make an access request about the information that’s held about their spent or unspent convictions (and give this information to the Employer), except in certain circumstances where the record is required by law or where it’s justified in the public interest. Otherwise, the employer will be committing a criminal offence and can be fined.
What employers should consider when employing ex-offenders:
In deciding whether an individual is suitable for a particular job, Employers should consider:
- The person’s age at the time of the offence and 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;
- The relevance of the offence to the job in question;
- What else is known about the individual’s conduct before and since the offence.
More advice and information is available from www.nacro.org.uk , the crime reduction charity who are dedicated to reducing crime and re-offending.
In June 2014 the Supreme court ruled that forcing job applicants to disclose minor crimes as part of recruitment background checks is a breach of their human rights.
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk (click here) – a Human Resources Consultancy for small businesses – you can retain us for as much time as you need.
Please note that the advice given on this website and by our Advisers is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.