Plans to Strike Minor Offences From Job Applications

  • Posted

hiring ex offenders

Home Secretary Sajid Javid is considering plans to wipe minor offences from the records of criminals applying for work, in order to stop them being denied jobs because of spent convictions. The Home Office and Ministry of Justice are currently partnering to review the rules on disclosure.

Under current laws, any person with more than one criminal conviction – regardless of the severity of the offences – will automatically have their prior offences disclosed to prospective employers for the rest of their lives. In addition, any formal cautions or reprimands given to a child for committing serious offences – such as assault – also have to be disclosed to employers for life.

The proposed changes to legislation could however mean that offences including minor assaults, thefts or drug possession would no longer be automatically disclosed to employers by the government’s Disclosure and Barring Service (DBS). Discussing the proposed reforms, Mr. Javid underlined the potential unfairness of people who commit minor crimes when they are young having their offences hang over them for years, and voiced concern that the current law may prevent some from turning their lives around.

Employers obliged to ignore spent convictions

Whilst some jobs require a DBS check of candidates – such as those involving work at schools, children’s homes and hospitals – many other employers decide to routinely request DBS checks to ensure a safe recruitment process.

Many employers are legally permitted to request a criminal record check as part of their recruitment process, with the level of scrutiny ranging across basic, standard and enhanced checks. Under law however, a job applicant is not obliged to reveal any convictions that have become “spent” after a certain period of time under the Rehabilitation of Offenders Act 1974.

It is similarly illegal for employers to refuse to employ a rehabilitated person on the basis of a spent conviction, and they must treat the applicant as if this conviction never occurred. As the DBS does not have access to overseas criminal records, checks may not provide comprehensive information on the criminal records of workers who have lived outside the UK. In these circumstances, employers are advised to obtain references or a certificate of good conduct from overseas employers, or contact the embassy or High Commission in the relevant country, to ensure that they may safe recruitment decisions.

Proposals follow court ruling

The plans to not disclose minor offences to employers during job applications have received a mixed response. David Green, director of think tank Civitas, urged that the proposed disclosure restrictions should not apply to employers who required “above average levels of honesty.”

Stating that there was “very little wrong with the present law,” Mr. Green added:

“A potential employer may well decide to disregard an isolated case of shoplifting when a candidate was 14, but it is right that this group of employers should be given full information. If it is withheld from them, they can’t fully protect their clients.”

Christopher Stacey, co-director of disclosure reform charity Unlock, said that the changes would “give thousands of people every year a fairer chance when applying for work or volunteering without the stigma and shame of having to disclose mistakes that they might have made years – sometimes decades – earlier.”

The proposals come after the government was rejected in its appeal against a ruling which found that individuals’ human rights had been unjustly infringed by disclosure of their past minor convictions. In January, the Supreme Court rejected the government’s attempt to challenge the legality of a 2017 Court of Appeal judgement, agreeing with lower court judges that disclosure regulations were “disproportionate”.

Employment law advice for businesses and organisations

Our employment lawyers provide advice on the employment aspects of all major business decisions including policies and contracts, employer obligations, TUPE, settlement discussions and agreements and workplace dispute resolution and mediation. For advice, please contact a member of the team on 03456 381381 or email employment@ibblaw.co.uk.