It’s understandable that employers want to determine whether a job candidate is trustworthy and of good character before hiring them, and to be certain that workers maintain this standard during the course of their employment.
Pre-employment checks play an important role in vetting candidates and reducing risk during recruitment. Even if criminal record checks are not a necessity for a particular position or industry, employers may prefer to make a job offer conditional on the candidate passing background checks before the employment contract is signed.
They may also want to know about any convictions that occur after someone is hired, making disclosure of convictions a condition of employment to avoid tarnishing their company’s reputation.
In this guide for employers, we explain what the law says about employees disclosing criminal convictions to their employers, as well as the consequences of failing to reveal a criminal history during pre-employment or post-recruitment checks.
Can you ask job candidates if they have any criminal convictions?
By law, employers are allowed to ask applicants to disclose details of any unspent convictions as part of their recruitment process.
Regardless of the post applied for, any person with an unspent conviction must declare it to a prospective employer if questioned about their criminal past.
However, under the Rehabilitation of Offenders Act (ROA) 1974, job applicants are not required by law to disclose a spent conviction, unless the job being applied for is ‘excepted’ from this rule.
When do job applicants have to disclose criminal convictions?
When a crime will be considered spent will depend on the following factors:
| Age when the crime was committed | Caution or conviction | When filtering occurs |
| Under 18 | Caution | Two years after the caution was processed, as long as the crime is not relevant to safeguarding |
| Under 18 | Conviction | Five and a half years after the conviction as long as you weren’t given a prison sentence, have been crime-free since and the crime wasn’t relevant to safeguarding |
| 18 and older | Caution | Six years after the caution was processed, as long as the crime is not relevant to safeguarding |
| 18 and older | Conviction | Eleven years after the conviction as long as you weren’t given a prison sentence, have been crime-free since and the crime wasn’t relevant to safeguarding |
If a conviction is not served, there are specified rehabilitation periods for each conviction, which vary depending on the age of the offender and the duration and type of sentence issued. The conviction will be classified as unspent for the duration of this period.
The conviction will never be deemed spent for major offences where the individual has been sentenced to more than 4 years in prison.
For minor offences, such as when an adult offender was fined, the rehabilitation period could be as short as 12 months from the date of conviction.
If a conviction is spent, it means that a person has been convicted of a criminal offence but has not re-offended within the stipulated rehabilitative term. After then, in the context of employment-related disclosure, the offender will be treated as if they had never committed the crime.
For people with spent convictions, the applicant has the right to withhold this information as if they had no criminal record.
In this way, the law aims to strike a compromise between criminals’ rights to rehabilitate and move on with their lives and businesses’ rights to learn about a person’s criminal background in order to safeguard their business and brand.
‘Excepted roles’ exempt from the spent conviction rules
Certain roles and occupations, often those involving positions of trust or sensitive areas of work, are excluded from the legislative protection granted to applicants not to divulge spent convictions under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.
Working with children or in health and social care, working in law enforcement and the legal system, or working in high-level financial roles are all examples of this. This is in acknowledgement of the fact that a more complete disclosure of an applicant’s criminal background is important for these types of jobs.
If an employer is hiring for a job that is ‘exempt’ from the ROA, they have the right to ask about any spent convictions, albeit minor previous convictions may be safeguarded.
Employers have the right to require a routine DBS check at the very least.
Spent and unspent convictions, cautions, reprimands and warnings maintained on the police national database will be revealed by a regular check, such as for candidates in the legal or financial sectors.
For anyone working with children or vulnerable adults, an enhanced check will reveal the same information as a normal check, as well as any relevant information stored by local police forces.
Employers must decide whether any spent or unspent criminal convictions are relevant to the role to be performed in the context of excluded roles, taking into account any sector-specific instructions.
In the case of non-excepted jobs or positions, if the candidate has the legal right to conceal the fact or existence of any spent conviction, an employer cannot refuse to hire that person if information about their criminal background is revealed.
This is because it is illegal for an employer to discriminate against an employee because of a pending conviction. In fact, this is unlikely to occur because employers are not permitted to inquire about spent convictions or conduct anything other than a basic DBS check for non-excepted employment.
However, this information should be ignored if a candidate admits to having a criminal record or if the employer learns about it from a third party.
How to carry out a criminal background check
Employers can ask about an applicant’s criminal background within their written application process or verbally during an interview. However, only successful candidates should be questioned about their criminal records. This ensures employers are only collating data where necessary, and not in relation to all applicants.
If an employer wants to know about a criminal background, they have to ask. Applicants are not required to reveal any criminal convictions proactively.
Furthermore, even if an employer expressly requests that a candidate disclose any criminal history, the applicant usually has a right under the rules of the ROA not to disclose spent convictions.
To conduct a criminal record check, the employer would usually request a criminal record declaration form from the candidate or a Disclosure and Barring Service (DBS) check.
All employers are permitted to request a basic check of a candidate’s criminal background, which will reveal any unspent convictions and conditional cautions.
In some cases, ‘enhanced’ checks will be required, due to the nature of the job being recruited for. For example, roles working with children or adults in receipt of personal care.
Hiring workers with unspent convictions
Having a criminal past should not necessarily be a barrier to employment. Applicants must reveal any unspent convictions when asked, and this then becomes information that an employer should use to consider when determining an applicant’s eligibility for a position.
Employers should use their discretion when making recruiting decisions and are generally free to hire whoever they want, as long as they don’t consider spent convictions where they aren’t legally allowed to and don’t discriminate on the basis of a protected feature like age, sex, disability, or colour.
The DBS Code of Practice places a requirement on registered employers to have a fair and clear policy toward employing ex-offenders, and not to discriminate automatically on the basis of an unprotected conviction. This includes giving consideration as to whether a person’s convictions make them unsuitable for a particular job.
It is generally advisable for employers to assess candidates on a case-by-case basis rather than adopting a blanket denial policy for everyone with a criminal past. For example, employers may opt to overlook unspent convictions if the offences are unrelated to the position to be performed by the individual.
Employers may also take into account the wider circumstances and related factors, such as the seriousness of the offence, the individual’s age at the time of the offence, the length of time since the offence occurred, whether there is a pattern of repeated offending, as well as any relevant mitigating factors.
Can you withdraw a job offer due to a criminal conviction?
In the case of excluded roles, an employer may revoke a job offer if a criminal conviction, spent or unspent, is not disclosed. This is because full disclosure in situations involving positions of trust or sensitive areas of work is a legal necessity. The only exception is if the conviction has been spent.
Similarly, if an applicant fails to reveal any unspent convictions for a non-excepted role, an employer would be justified in rescinding an offer of employment, providing the individual was asked to submit a criminal record disclosure, either verbally or in writing, during the recruitment process.
This is because any omission to reveal unspent convictions raises questions of honesty, even if the conviction is unrelated to the job at hand or is so small that it would not have jeopardised an applicant’s fitness for the position.
Nonetheless, prospective employees are not legally obligated to declare any spent convictions for a non-excepted job function, therefore they cannot be accused of being dishonest if they do not.
The employer has no right to inquire about spent convictions, and if one is discovered, it must not be considered in any hiring decision.
Can you dismiss someone for failing to disclose a conviction?
Whether or not an employer can justify dismissal on the grounds of failing to disclose an unspent conviction will be determined by the specific facts.
Generally, failure to disclose a spent criminal conviction cannot be used as a fair basis for terminating employment, in the same way that it would not normally be a fair basis for not hiring someone.
However, if an employee has been required to report any unspent criminal convictions during the recruitment process, or if disclosure of a subsequent conviction is a condition of employment, failure to disclose could be considered serious misconduct, which is a potentially fair reason for dismissal under the Employment Rights Act (ERA) of 1996.
The main area of legal risk will be ensuring the employer follows a fair disciplinary procedure that results in dismissal.
When a person fails to reveal an unspent conviction when they are not asked or obligated to do so, the situation becomes more complicated since there would technically be no issue of dishonesty or deception.
Under the ERA, the employer may still be able to terminate an employee for “some other serious reason,” particularly if the crime is related to the employee’s job or poses a severe reputational harm to the employer’s business. In such cases, the employer would need to prove that the employee’s activities provided sufficient justification for dismissal.
Employees who have not yet completed two years of continuous employment would not be eligible to bring an unfair dismissal claim. When the qualifying service requirement is met, however, the employer must conduct a thorough and fair investigation and act appropriately in all circumstances, taking into account the nature of the conviction and any mitigating considerations.
Failure to disclose a criminal conviction FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
