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It is essential for employers to be careful in selecting staff. No employer can be faulted for asking the question 'Do you have any criminal convictions?' in a job application form, provided that the employer has implemented adequate procedures to deal with the answer both in terms of the Rehabilitation of Offenders Act 1974 (the Rehabilitation of Offenders (Northern Ireland) Order 1978 in Northern Ireland) and the Data Protection Act 1998. However, problems can arise if the employer does not understand its responsibilities under this legislation. You should use a criminal convictions declaration form for job applicants to aide you through this process.
Under the provisions of the above-mentioned legislation, a person may deny that they have a criminal conviction when that offence has become 'spent' and the post they are applying for is not one which is exempt from the provisions of the act (see below under excepted posts). In general, a person convicted of a criminal offence, and who receives a sentence of no more than two and a half years in prison, benefits from the Act if they are not convicted again during a specified period called the rehabilitation period. The length of the rehabilitation period depends on the sentence, and runs from the date of the conviction.
The Rehabilitation of Offenders Act 1974 and Rehabilitation of Offenders (Northern Ireland) Order 1978 apply to all types of sentence, whether it is a term of imprisonment, a fine, probation, absolute or conditional discharge, findings in a juvenile/young offenders court that an offence has been committed. The more severe the penalty, the longer the rehabilitation period. Once a rehabilitation period has expired and no further offending has taken place, a conviction is considered to be 'spent'.
It follows that if an employer asks whether an applicant has any criminal convictions in a job application form that the employer should have facilities to protect the confidentiality of this information, and properly handle the responses in accordance with the Data Protection Act 1998. Care should therefore be taken that a conviction which is not 'spent' when it is first recorded in the personnel files is properly handed when it has become 'spent'.
Employers who ask whether an applicant has any criminal convictions in a job application form should also indicate in the form that they do not expect applicants to disclose spent convictions unless the post is exempt from the provisions of the Rehabilitation of Offenders Act 1974/Rehabilitation of Offenders (Northern Ireland) Order 1978.
If a post is an excepted post, an applicant must disclose all convictions whether or not the conviction is 'spent'. Posts which are exempt from the Rehabilitation of Offenders Act 1974/Rehabilitation of Offenders (Northern Ireland) Order 1978 broadly cover:
Criminal record checks should be obtained if the applicant is an exempt person or if they will be working with children and/or vulnerable adults. It should be obtained with the knowledge and consent of the applicant. The methods of obtaining a criminal record check and the type of information available vary slightly between England & Wales, Scotland and Northern Ireland.
There are three different types of checks (disclosures) that can be undertaken:
Criminal record checks for England & Wales are under taken by the Criminal Records Bureau (CRB) 
. Currently an employer is unable to obtain a basic disclosure from the CRB. However, both ‘standard’ and ‘enhanced’ disclosures are available for employers employing staff who work with vulnerable people (e.g. children and the elderly) or for posts that are exempt from the Rehabilitation of Offenders Act 1974.
In Scotland criminal record checks need to be carried out through Disclosure Scotland . Applications can be made for basic, standard and enhanced disclosure.
In Northern Ireland criminal record checks need to be carried out through Access NI . Applications can be made for basic, standard and enhanced disclosure.
The Independent Safeguarding Authority (ISA) - England, Wales and Northern Ireland only
Employers have a legal requirement to perform additional checks if the job involves working with children or vulnerable adults. If the role involves working with children or vulnerable adults in England or Wales or Northern Ireland then you should contact the Independent Safeguarding Authority (ISA) to obtain information on a candidate that you wish to recruit in addition to undertaking a criminal records check. The ISA check will only reveal whether or not an individual is registered with the ISA. It will not provide full information with regard to an individual’s criminal record, which would be obtained from a criminal records check, which is why you must complete both checks.
You should contact ISA prior to offering a candidate the job or you should make their job offer subject to obtaining ISA approval.
Only potential employees who are judged not to pose a risk to children or vulnerable adults can be ISA registered.
ISA will begin a new centralised vetting and barring scheme on 12 October 2009 in England, Wales and Northern Ireland which will require more individuals to register with the ISA.
Under the new scheme work done for or with vulnerable groups will be divided into two categories – ‘controlled’ and ‘regulated’ activities. See the ISA factsheet for full definitions of these activities. Only ISA registered individuals will be able to undertake ‘regulated’ activities. Individuals who will undertake ‘controlled’ activities who do not appear on the ISA register will still be employable so long as the employer ensures that certain safeguards are put into place.
The VBS will be set up in phases, with the following dates of significance:
Employers must also ensure that their existing employees are ISA registered although this will not include any children aged 16 and 17 (whether paid or unpaid) who are working for the employer.
See the ISA website for further information on registering your employees.
Until the VBS scheme is fully operational and mandatory you should:
ISA have a dedicated ‘Vetting and Barring Scheme’ contact centre. If you have any questions or queries about the VBS you can contact them on 0300 123 1111 (Monday to Friday between 8am and 5.30pm) or obtain further information from the ISA website.
A separate but aligned scheme is being set up in Scotland called ‘The Protecting Vulnerable Groups Scheme’(PVGS) . It is due to come into force in 2010 and will be run by Disclosure Scotland. Anyone included on a PVGS list in Scotland will also be barred from working with children and vulnerable adults across the UK.
