Other than in cases where legislation or industry guidance determine how an employer deals with the disclosure of a criminal record, employers must exercise their judgment when deciding whether to employ someone who they know to have a criminal record.
The weight which should be attached to the person’s criminal record history is for the employer to determine and will depend on the circumstances.
In particular: there may be sectors where having a certain criminal record history will effectively preclude the person from being appointed to the role in question.
For example, it would be inconceivable to employ teachers and social workers if their names appeared on a barred list, indeed section 9 of the Safeguarding Vulnerable Groups Act 2006 makes it unlawful to do so.
See Schedule I to the The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (the ‘Exemptions Order’) for details.
There may be sector-specific regulations or guidance which influences the weight to be attached to criminal records.
Nacro (the crime prevention charity) recommends that employers do not have a blanket ban on employing ex-offenders but instead carry out a risk assessment which is relevant to the sector, position and situation.
Employers who operate good recruitment policies are likely to have other means by which they can assess an applicant’s suitability, such as checking qualifications and taking up references.
Regardless of the means by which they have come across the information about that criminal record, the spent or unspent status of the conviction may be relevant to their acting on that knowledge:
If the conviction is spent, the employer may not refuse to employ someone on this basis, unless the position applied for falls within the Exceptions Order.
If the conviction is spent but the position falls within the Exceptions Order, then the employer may refuse to employ such a person and ought to refuse to employ such a person if there is legislation specific to that sector which would make it ill-advised for an offer of employment to be made.
For example, it is a criminal offence to employ someone as a teacher if they are barred.
If the conviction is not spent, the employer may decide not to employ that individual.
The ROA 1974 prohibits an employer using knowledge of a spent conviction as grounds for excluding, or dismissing, a person from employment (section 4(3)(b)). However, there is no specific penalty provided by the legislation for breach of that prohibition.
While an employee who is dismissed on discovery of a spent conviction may have a remedy, a job applicant who believes that such a discovery resulted in an employer deciding not to offer them a job appears to have limited redress.
They may be able to complain to the Information Commissioner’s Office (ICO) about the employer improperly processing personal data but, other than this, there is no obvious remedy available to them.
Assuming there is no industry guidance or sector-specific regulation, but the position nevertheless falls within the Exceptions Order, the employer should use its own judgment when having regard to the person’s criminal record history.
If the role does not fall within the Exceptions Order, the employer should not take spent convictions into account but may take unspent convictions into account.
In cases where the employer is exercising its independent judgment (in other words, where it is not bound by sector-specific guidance or regulations), Nacro recommends that it is good practice for employers to have regard to the following factors:
- Whether the conviction (or other matter revealed) is relevant to the position in question.
- The seriousness of the offence.
- The length of time since the offence was committed.
- Whether there is a pattern of offending or other relevant matters.
- Whether the applicant’s circumstances have changed since the offending behaviour.
- The circumstances surrounding the offence and the explanation offered by the individual involved.
The types of employment that are exempt from the Rehabilitation of Offends Act 1974 are:
- Regulated activity with children and other activities which involve working closely with children such as caring for, training, supervising or being solely in charge of children under 18 (including adoption, fostering, day care and childminding)
- Regulated activity and other activities which involve caring for, training, supervising or being solely in charge of other people in vulnerable circumstances (including social work and advocacy services)
- Employment in healthcare professions (including medical practitioners, dentists, nurses, midwives, optometrists, registered pharmacists and osteopaths)
- Employment concerned with national security (including the provision of air traffic services and employment by the UK Atomic Energy Authority)
- Employment in the legal profession (including barristers, solicitors, legal executives, the Crown Prosecution Service and judicial appointments)
- Offices and positions in HM Courts and Tribunals Service and the Judicial Office (including Justices’ and sheriff’s, court and tribunal security officers and contractors with unsupervised access to court-houses, tribunal buildings, offices and other accommodation used in relation to the court or tribunal)
- Employment in law enforcement (including police constables and cadets, the naval, military and air force police, traffic wardens and employment in the Serious Fraud Office (SFO) and the Serious Organised Crime Agency (SOCA)
- Offices responsible for the enforcement of warrants and writs (including Court officers who execute county court warrants, High Court enforcement officers, sheriffs and Civilian enforcement officers)
- Employment in the Prison and Probation Services (including prison and probation officers, members of boards of visitors etc.
- Employment in the financial sector (including chartered and certified accountants, actuaries and all positions for which the Financial Conduct Authority or the competent authority for listings are entitled to ask exempted questions to fulfil their obligations under the Financial Services and Markets Act 2000)
- For licensing purposes (including the National Lottery, gambling, firearms and drugs licensing purposes, Security Industry Authority licences, and licensing hackney carriages or private hire vehicle drivers)