What the Rehabilitation of Offenders Act means for employers

Unless you are hiring for a role that involves a regulated activity, chances are you won’t be wondering whether the person you are interviewing is a criminal. But what if we told you that of the estimated 66,796,807 people living in the UK (mid-2019), more than 11,000,000 hold a criminal record.  

What if we also told you that:

• 1 in 3 men hold a criminal record
• Of these, just under 50% have been convicted more than once
• And more than 85% were convicted before turning 30

We aren’t telling you this to worry you. We are highlighting that more people than you think have a less than desirable past. However, having a criminal record doesn’t automatically make you a criminal or even a bad person. 

Everybody makes mistakes, and people who have committed a crime can go on to be well-rounded citizens. But to achieve that, people with a criminal history must be given a fair chance. That is where the Rehabilitation of Offenders Act comes in.

What is the Rehabilitation of Offenders Act 1974? – A Summary

The Act was created to protect individuals who hold a criminal record but are considered to have ‘done their time’. Whether it’s a prison sentence, paying off a fine or some other form of punishment, once justice has been served, the individual should have the same opportunities as everyone else. 

This doesn’t mean that their record is wiped clean, but it does mean that their crime is considered ‘spent’ or ‘disregarded’ and shouldn’t be held against them. This includes for work purposes. The Act dictates that most employers cannot ask candidates to disclose spent convictions. 

Do all crimes become spent eventually?

Some crimes will never be considered ‘spent’. These are crimes that, if undisclosed, could put people at risk. As an employer, you should not let a spent conviction prevent you from offering a position to someone who is the best person for the job. However, you must take the time to understand whether any unspent convictions will make a candidate unsuitable for the position you are recruiting for. Find out the difference between spent and unspent convictions here.

What jobs are exempt from the Rehabilitation of Offenders Act?

Some jobs that are not covered by the Act, as hiding these could put people at considerable risk. These include:

• Roles that include a regulated activity 
• Accounting positions
• Jobs within the legal system
• Roles that involve working with animals
• Transportation roles such as taxi drivers 

However, that doesn’t mean that they are unprotected from discrimination by potential employers.

What does this mean for employers?

This means two things for employers:

1. Just because a DBS check comes back clear doesn’t mean that a candidate doesn’t have a criminal history
2. You must tread carefully when a DBS check comes back with information on illegal activity

While you can legally renege on a job offer based on a DBS check’s findings, you can only do this if the crime is relevant to the role. If you cannot justify why a candidate’s history makes them ineligible for the job, you cannot use it as a reason to decline a job offer. If you do, you could be subject to legal action. You can read what you should do with the findings of a DBS check here.

While you cannot disclose the findings of a DBS check to anyone, we can offer legislative advice should you need it.