November’s Employment Law Digest – Changes to the rules on rehabilitation of offenders
16th November, 2023
The very end of October brought with it new legislation that employers who are recruiting people, or have existing employees, who hold a criminal conviction, should be aware of.
In this article we look into what the new legislation is, what it actually means, and how it might affect your business and your approach to recruitment.
What is the new legislation?
Changes to the legislation regarding ex-offenders came into force on 28 October 2023. This reduces the time period in which individuals must declare convictions to employers. These changes have been a long time coming, after it was proposed in the Ministry of Justice White Paper in September 2020. This was brought in with an aim to help ex-offenders find work and to reduce reoffending.
What does it actually mean?
Whilst some crimes will stay on your criminal record indefinitely, most convictions are considered ‘spent’ after a specified period of time. Once an offence is ‘spent’, it means that the offence committed is removed from an individual’s record, and therefore means that the individual does not have to mention the conviction again, including on job applications.
These changes substantially reduce the time individuals are legally required to declare their criminal convictions to potential employers after serving their sentence. Under the previous rules, there were a higher number of offenders who were required to disclose their sentences for the rest of their lives.
Probably the most significant change, and one that may concern employers the most, is that custodial sentences of 4 years or more now become spent after a 7-year rehabilitation period. Previously, these offences could never have become spent. This, however, is on the condition that no further offence is committed, and the time periods are extended in the event of any re-offending during these periods. If an individual does re-offend, then any new conviction will attract its own disclosure period and both the previous conviction and new conviction need to be declared for the duration of whichever rehabilitation period is longer.
There are, however, still some exceptions. Those offenders who have committed serious sexual, violent, or terrorist offences are excluded from these changes to ensure that there is not an increased risk to the public. There are also different (slightly lower) time periods where an offender is under 18, in recognition that children are often highly vulnerable and still maturing.
How will this affect recruitment?
- Applicants do not need to disclose any spent convictions when applying for jobs, and employers cannot ask them to do so.
- If employers do ask an applicant to disclose a spent conviction, the applicant is permitted to lie about it.
- Employers need to ensure that an individual who has a spent conviction (if it is known), is treated the same as a person who has not been convicted.
- An employer cannot use a spent conviction as a legitimate ground for either refusing to employ someone or ending an employee’s employment.
The changes outlined above will not affect employers who are hiring for roles which are excepted and who need to carry out DBS checks. An excepted role is one that falls within the Exceptions Order. A risk assessment should always be undertaken to assess whether a DBS check is relevant and proportionate to the position concerned. Stricter disclosure rules will continue to apply to jobs that involve working with vulnerable people, through standard and enhanced DBS checks. It remains the case that employers should only carry out DBS checks for certain roles (those that are listed in the Exceptions Order), and they must ensure they carry out the right level of check. See DBS guidance here.
What should an employer do?
- Familiarise themselves with the changes in rehabilitation periods.
- Understand how the above changes affect their recruitment processes.
- Ensure that the relevant paperwork, policies, guidance, forms and systems are updated to reflect the new disclosure periods.
- Ensure decision making in relation to an individual with a criminal conviction is documented, to demonstrate compliance with policies.
How can we help?
At Ward Hadaway we have significant experience in providing advice to employers on the recruitment process, including situations where applicants or employees have criminal convictions, and assisting clients in developing policies and procedures to help guide them through this.
If you have any questions relating to anything discussed in the article or if you would like advice on any other matter please do get in touch with Heather Ramsay one of our expert Employment lawyers.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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