What does the law say about disclosing criminal records when applying for jobs?
The Rehabilitation of Offenders Act 1974 (ROA) allows most convictions (and cautions) to be considered spent after a specified period of time. Once a caution or conviction is spent the person is considered rehabilitated and the ROA treats the person as if they had never committed an offence. This means that jobseekers with criminal records have the right to legally withhold such information from a prospective employer when applying for most jobs. The specified period of time is determined by the sentence or disposal that was received in respect of a particular offence.
All employers are entitled to ask applicants to disclose details of any convictions which are not yet spent (i.e. unspent) under the terms of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013).
The Company will, therefore, ask all prospective employees, irrespective of the position applied for, if they have any convictions which are, on the date of the application, considered to be “unspent” and should therefore be declared. Most positions in the Company, however, are considered to be exempt from the provisions of ROA, and all convictions, spent, or unspent, must be declared. This is due to the fact that the work of the Company is almost wholly concentrated towards the provision of care services, often intimate, to children and/or vulnerable adults.
In addition to asking job applicants to declare their criminal record, if they have one, the Company will also make a joint application, with the applicant for a criminal record check with the Disclosure and Barring Service (DBS). The check will be at one of the following levels:
Standard check – To be eligible for a standard level DBS check, the position must be included in the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975.
Enhanced check – To be eligible for an enhanced level DBS check, the position must be included in both the ROA Exceptions Order and in the Police Act 1997 (Criminal Records) Regulations.
Enhanced check with children’s and/or adult’s barred list check(s) – To be eligible to request a check of the children’s or adult’s barred lists, the position must be eligible for an enhanced level DBS check as above and be specifically listed in the Police Act 1997 (Criminal Records) Regulations as able to check the barred list(s).
These checks are essential in confirming that any applicant is neither unsuitable for the role applied for, or are in fact barred from undertaking such a role.
Such checks will only be undertaken once an applicant has been given a provisional offer of employment by the Company.
Asking for information about criminal records
In line with recommended best practice the Company does not seek information about criminal records as part of the initial selection process, i.e. with the job Application Form. This will ensure that there is no undue bias introduced at the earliest stage of the recruitment process.
Rather, all Job Applicants selected for interview will be asked to confirm details of any criminal records, in writing, in a format prepared by the Company, and asked to bring such a completed form with them to interview.
