Employing staff with criminal convictions

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 aid you through this process.

Under the provisions of the above-mentioned legislation, a person is not obliged to disclose that they have a criminal conviction when that conviction has become 'spent' and the post they are applying for is not one which is exempt from the provisions (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 above-mentioned legislation 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'.

If an employer asks whether an applicant has any criminal convictions in a job application form, the employer should have facilities in place 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 handled 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:

• Certain professions, for example, doctors, dentists, opticians, nurses and midwives, solicitors, pharmacists, taxi drivers, vets, traffic wardens and teachers
• Work in the health service where there is access to patients
• Work in social services where there is access to people with disabilities, the young, the elderly, and the sick or other vulnerable adults
• Work where there is access to people under the age of 18
• Work involving the administration of justice, for example, court officials, the police, probation officers, prison staff
• Applications for certain certificates or a licence such as for gaming or firearms or explosives
• Any occupation concerned with the management of a private hospital or nursing home
• Certain occupations where national security may be at risk such as working for the Civil Aviation Authority
• In England and Wales only: where an applicant is applying for a job that involves contact with children or vulnerable adults and this job is a 'regulated activity'. See the Government guide for more information, including a full definition of this term. Note that changes to the original definition have been scaled back under the Protection of Freedoms Act 2012.

Criminal-record checks should be obtained if the applicant is applying for an excepted post 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:

• Standard disclosure: This will contain details of a person's criminal convictions including any 'spent' convictions, cautions, reprimands and warnings.
• Enhanced disclosure: As above, but will include any additional information held by the local police force that they reasonably consider to be relevant and appropriate to the post applied.
• Enhanced with list checks: This includes all the information contained in the enhanced disclosure, but with the addition of checks being made against a list of individuals who are barred from working with children or vulnerable adults.

Criminal record checks for England & Wales are undertaken by the Disclosure and Barring Service (formerly the Criminal Records Bureau). Generally an employer is unable to obtain a disclosure from the DBS. However, both of the 'enhanced' DBS 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. See the Gov.uk website for further information on obtaining such checks.

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 Disclosure and Baring Service (DBS) has replaced both the Independent Safeguarding Authority and the Vetting and Barring Scheme in England, Wales and Northern Ireland.

Employers have a legal requirement to perform additional checks if the job involves working with children or vulnerable adults. The law requires that if the role involves working with children or vulnerable adults in a regulated activity, then:

• You must request an 'enhanced with list check' from the DBS to obtain information on the candidate that you wish to recruit. This should then tell you whether the individual appears on one of the lists managed by the DBS of people who are unsuitable for working with children and/or adults. Employing someone (whether an employee, worker or volunteer) who appears on a barred list will be a criminal offence.
• You must Notify the DBS if you dismiss or move an employee if you believe that they pose a risk to children or vulnerable adults. Failure to do so will also be a criminal offence.

Ideally the enhanced DBS check should be obtained before offering someone the job, otherwise you should make the offer subject to obtaining a satisfactory report.

A separate but aligned scheme is being set up in Scotland called 'The Protecting Vulnerable Groups Scheme'(PVGS). The PVGS only applies to people who work with vulnerable groups and it does not apply to personal arrangements that people make with friends or family, or to work positions where there is no opportunity to cause harm to vulnerable groups. The PVGS will be phased in over a four-year period, which is expected to commence in February 2011. It will be run by Disclosure Scotland, who have provided guidance (opens a PDF).