On 28 October 2023, the rehabilitation periods under the Rehabilitation of Offenders Act 1974 (the Act) changed. The new rehabilitation periods for adults are as follows:

In summary, the effect of these changes is that a conviction becomes spent sooner than before. The most noticeable change is that if an individual has received a custodial sentence of more than 4 years, the conviction is now spent after 7 years (previously a conviction in these circumstances never became spent). 

However, to ensure public safety, this amendment does not apply to individuals sentenced to more than 4 years imprisonment following a conviction for any serious violent, sexual, or terrorist offences. These convictions will continue to never become spent and will therefore always be disclosed on all levels of DBS check.

There are a number of questions that employers, particularly in regulated sectors, may now be asking. 

What does ‘spent’ mean?

If a conviction is spent, it means that a certain amount of time (the rehabilitation period as set out in the Act) has passed since the conviction. The idea is that if a conviction is spent, it is regarded in effect as being expunged or removed from that person’s history because the person has proven that they can live a law-abiding life and are rehabilitated. 

How do these changes impact employers recruiting to roles which involve working with vulnerable adults and young people?

The short answer is, not a lot.  

The position remains that there are certain exceptions where someone may be asked to disclose their caution or conviction even if it is spent. The provision for this is set in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (the Exceptions Order). 

There are three different levels of DBS check. The highest level, the enhanced DBS check, will continue to show employers all cautions and convictions, including those that are spent convictions. Employers are entitled to obtain enhanced  DBS checks when the role that they are recruiting to falls under the Exceptions Order. In addition to this, you can also ask the applicant to disclose the same in an application form. 

Some examples of the types of jobs in the Exceptions Order are as follows:

• 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.
• Regulated activity and other activities which involve caring for, training, supervision or being solely in charge of other people in vulnerable circumstances (including social work and health care roles).

Therefore, since the majority of roles in the health and social care sector (and many in the education sector) will fall under the Exceptions Order, employers recruiting in this sector will see no change to the level of information you are entitled to at recruitment stage concerning an applicant’s criminal record.  

So, what has changed that we do need to know about?

The changes to the Act will only affect what an individual has to say with respect to a question about unspent convictions and the level of information that a basic DBS check shows i.e. the changes affect the level of information employers are entitled to when recruiting for roles that do not fall under the Exceptions Order, for example, office and administrative based roles. Due to the rehabilitation periods being reduced, less may show up on a basic DBS check and the applicant may have a spent conviction that they do not need to tell you about, that they previously would have needed to disclose. 

However, if you are recruiting for a role which only requires a basic DBS check, you are not allowed to ask about spent convictions in any event. Further, serious violent, sexual, or terrorist offences where the individual had more than 4 years imprisonment will never become spent, which should give some reassurance that you are making safe recruitment decisions. In addition, if you have a robust and fit-for-purpose recruitment process, hopefully, you will be recruiting skilled individuals with the right attributes and experience to match your organisation’s values and culture. 

Example scenarios you might find yourself in:

Scenario 1: An employer refuses to employ an individual to a role which does not fall under the Exceptions Order, after becoming aware of a spent conviction 

Refusal to employ a rehabilitated person solely on the grounds of a spent conviction is unlawful under the Act. This is because if an individual’s conviction is spent, the employer should treat the applicant as if the conviction has not happened. 

However, in an employment context, there is no legal concept of ‘discrimination on the basis of having a criminal record’, as there is discrimination on the grounds of protected characteristics such as age, race, or disability. So, the applicant could not bring an Employment Tribunal claim on the basis that they’ve not been taken on due to their spent conviction. 

We still recommend keeping a written record of why an application has not been successful, should you need to rely on it at a later stage to justify your decision.

Scenario 2: A contract of employment requires an individual to disclose all cautions and convictions (including spent convictions), on an ongoing basis. The employee fails to disclose something that they should have under the contract, and you become aware of it

The changes to the Act described above in this post relate to recruitment decisions and information that employers will be entitled to have when deciding to offer someone a role.

We are aware that employers want to be aware of anything of a criminal nature that might arise during employment and have clauses in the employment contract requiring disclosure by the employee of certain events. If you become aware of a spent or unspent conviction during employment, you will need to carefully consider on a case-by-case basis what action (if any) should be taken in response and the risks of any action being considered. A knee-jerk response might be to consider dismissal. However, we always suggest that employers take legal advice if this is being considered. Employees with over 2 years' service who are dismissed can present claims for unfair dismissal and there is case law suggesting that a dismissal because of a spent conviction could be automatically unfair which would mean the dismissal cannot be shown to be fair in any circumstances. Hence why we advise employers to tread carefully when considering dismissal for a reason related to a conviction. 

For the most part, employers do not need to change the way you are conducting criminal record checks during recruitment. However, if you would like to discuss this topic further, do get in touch with Hannah Bollard.