Shropshire employers alerted to changes in law over declaration of criminal convictions

John Merry, head of the employment law team at Lanyon Bowdler, said it was important for employers to be aware of the changes to the Rehabilitation of Offenders Act which came into effect on October 28.

Amendments to the Act are intended to better allow the rehabilitation into employment of reformed offenders, but do not apply to serious sexual, violent or terrorist offences.

Mr Merry said: “Once a caution or conviction has become spent under the Act, unless an exception applies, it need not be disclosed, including when completing an application for employment or at a job interview.

“There are exceptions and they mainly relate to employment in particularly sensitive areas such as work with children, work in law enforcement and the legal system, and high level financial positions.

“Since October 28, the changes reduce the rehabilitation period for less serious offences, provided no further offence is committed in that time, and introduce a rehabilitation period for custodial sentences of over four years, which were previously unable to become spent.

“The reforms do not apply to serious offences which are never able to be spent or otherwise to roles where basic or enhanced DBS checks are required.”

Under the new rules, an adult conviction carrying a custodial sentence of over four years, which was previously never spent, is now subject to a new disclosure period of seven years, unless an exception applies.

For a custodial sentence of two and a half to four years, where the previous disclosure period was seven years, the new disclosure period is four years, although for a custodial sentence of one to two and a half years, the disclosure period remains unchanged at four years.

For a custodial sentence of up to a year, the disclosure period has reduced to just one year, whereas it was previously two years for a custodial sentence of up to six months, and four years for custodial sentences of between six months and a year.

For those under 18 at the time of the conviction, half the adult rehabilitation period applies.

Mr Merry added: “The new time periods are extended in the event of re-offending during the declaration period.

“Any new conviction attracts its own disclosure period and both the previous conviction and new conviction need to be declared until the end of the original conviction’s active period or, if later, the end of the new disclosure period applied to the more recent conviction.

“Employers should note that although the Act states that an employer cannot refuse to employ or dismiss someone because they have a spent caution or conviction unless an exception applies, there is no penalty attached to that, and the law does not provide any individual who is refused employment contrary to the Act with any entitlement to compensation or any other remedy.

“However, as failure to disclose the detail or existence of spent convictions is not a lawful ground for dismissal, an employer cannot rely on such a failure as grounds for dismissal without notice.

“This also means that any employee dismissed for such a reason after they have acquired unfair dismissal protection – which is currently after two years’ continuous employment – will be unfairly dismissed.”