Criminal Record Checks
Employers can only use Criminal Record Checks to check the criminal record of someone applying for certain roles, for example in healthcare or childcare. This is known as getting a Disclosure and Barring Service (DBS) check. https://www.gov.uk/dbs-check-applicant-criminal-record.
Depending on the sentence imposed for a specific crime, a criminal record will be either spent or unspent. For individuals who are given prison sentences of more than 4 years, their convictions will never become spent.
Convictions that are unspent will have to adhere to the following:
- If asked by an employer, the person would have to disclose a conviction and an employer can legally refuse or discriminate a person for this.
- The conviction will be disclosed on all levels of DBS disclosures, including Basic, Standard and Enhanced level checks.
- If asked, the individual will have to disclose the conviction when applying for products such as insurance, a mortgage or renting a house.
- An offender could be prosecuted if they fail to disclose the convictions when asked.
Conversely, some convictions become spent after a certain amount of time and The Rehabilitation of Offenders Act 1974 gives people with spent convictions and cautions the legal right not to disclose them when applying for most jobs and for other purposes
Image 1 demonstrates the time it takes for a main sentence to become spent and this is identified as the ‘rehabilitation period’. A conviction may have several rehabilitation periods depending on the sentence, but in this situation, the longest one applies.
A spent conviction, under the Rehabilitation Act 1974, can effectively be ignored after a specified amount of time has elapsed.
It must be noted that the rehabilitation phase depends on the sentence imposed, not on the actual offence. The more serious the conviction, the longer the period of rehabilitation. For example, if an individual received a prison sentence of 10 years, the conviction will never become spent. However, simple cautions become spent immediately and conditional cautions will become spent after three months.
The Rehabilitation Act aims to help offenders; often past mistakes can sometimes prohibit them from moving forward, particularly if they have been on the right side of the law for some time but recurrently get rejected from job roles because they hold a criminal record.
A person with a spent conviction does not need to disclose the information to any prospective employer and the employer cannot refuse to employ a person based on past spent convictions. However, some job roles are exempt from this rule if the applicant will be working with vulnerable adults or children in professions such as the education or health sector.
In this instance the application will state that it is exempt from the Rehabilitation of Offenders Act and past convictions would need to be declared as they may be disclosed on a DBS certificate. It should be noted that all Enhanced and Standard disclosures will show unspent and spent convictions.
If a job role is exempt from the Rehabilitation of Offenders Act, the law does protect people from having some old and/or minor convictions and cautions disclosed to employers, however, any sexual or violent offences will always be disclosed as well as sentences that resulted in a custodial sentence. If an individual has more than one offence, all the convictions will be disclosed on the certificate unless it is accepted for filtering.
Following a Court of Appeal ruling in 2013, the Government introduced a process called ‘filtering’, which has resulted in Standard and Enhanced checks no longer disclosing all cautions and convictions.
Filtering works in a similar way to the ‘rehabilitation period’ covered in the Rehabilitation of Offenders Act 1974, but instead of determining what is ‘spent’ and therefore not disclosed on a basic check, ‘filtering’ establishes what doesn’t get disclosed on a Standard or Enhanced DBS disclosure.
Information that is ‘filtered’ is automatically removed from a DBS check so that when an individual next applies for a new disclosure, it will not be divulged. However, this does not mean the conviction has been ‘deleted’ from police records. It simply means that if an individual is applying for a job that involves submitting a DBS check, they are legally entitled to withhold the details of anything that would now be filtered.
Filtering can apply to both:
- Cautions – multiple cautions can be filtered providing the offences are eligible and the relevant period has passed for each sentence.
- Convictions – only single convictions that did not lead to a suspended or custodial sentence can be filtered, providing the offence is eligible and the relevant time period has elapsed.
The following flow chart may help in distinguishing whether a criminal record is eligible for filtering:
An offence is not eligible for filtering if it appears on the list of specified offences published by the DBS. If you would like to access this list, please follow the link below:
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