Employers in the UK are often influenced by a significant amount of prejudice against candidates with criminal records. Despite the fact that employment law in the UK allows every individual to have equal access to employment opportunities, not all employers are keen on hiring individuals with a criminal past.
With the introduction of the Rehabilitation of Offenders Act (ROA) 1974there was a significant change in the obligations of employers, especially as the Act deems it unlawful for an employer to subject their employees to any form of ‘prejudice’ because of a conviction (if it is now spent).
Nowadays, employers try to practice as much transparency and caution as possible while screening their employees. They also work to discover a spent conviction through standard or enhanced Disclosure and Barring Service checks (although, these can only be done for roles exempt from the ROA), or through an employee’s own disclosure. As an employee, therefore, it is important that you know what legal rights you have.
Rehabilitation of Offenders Act 1974, or ROA
Under this act most convictions are considered spent after a specific period of time. Unless the court awards you a prison sentence of 4 years or more or any other type of indefinite order, your conviction will definitely be considered spent at some point.
Once your conviction is spent, you become entitled to apply for work or portray yourself as somebody who has never been convicted. Also, your employer will not be able to use your spent conviction as evidence in employment tribunal claims without your explicit consent or ask questions that would hint at such information.
Section 4(3) of the ROA states that you do not have to disclose your spent convictions even if your contract of employment specifically asks for such a disclosure. You are not liable for a breach of your employment contract if you fail to disclose a spent conviction.
Not only this, if your employer dismisses you not providing information of any spent conviction, you may have legitimate grounds to make a case of unfair dismissal. However, in order to bring such a claim, you still need two years’ service, which is contrary to the spirit of the ROA, as most spent convictions are discovered by employers at the beginning of the employment contract.
The Exceptions to the ROA
There are a few job roles that require you to disclose spent convictions as such roles are exempt from the ROA. These job profiles include:
- Doctors, midwives, nurses, and dentists;
- School-based jobs;
- Jobs with social services providers;
- Jobs involving supervision or training of individuals under the age of 18.
As a general rule, you should only disclose information about a spent conviction if the position you are applying for requires you to do so. Most job roles and professions in the UK are not exempted by the ROA. Thus, you can choose to deny any request for disclosure. You can even challenge an employer’s eligibility to ask for such disclosures if you believe that the job profile you are applying for is covered by the ROA.
Applying for Jobs Covered by the ROA (If You Have A Spent Conviction)
Filling Out the Application
If an employer asks you to disclose whether you have any criminal record, either on an application form or during a job interview, you are legally entitled to deny answering this question if your conviction is spent.
However, the ROA does not prevent you from discussing or revealing your conviction if you choose to. In certain scenarios, for example you have a gap in your employment record that are difficult to explain without revealing your conviction, you may decide to disclose.
However, it is important to remember that you have no legal obligation to do so. Therefore, you must consider your position carefully before disclosing, as employers may use the information to penalise you.
Being Refused A Job
According to the ROA, it is unlawful for an individual to be refused any job opportunity (except those exempted by the Act) on the grounds of them having a spent conviction. Therefore, if an employer denies you a job purely because you have a spent conviction, you may seek to bring a negligence claim based on a possible breach of statutory duty However, such claims are very unusual.
However, it is always better to seek legal advice from an experienced employment law solicitor before proceeding. Additionally, you would have to be able to prove that the denial of the position was based entirely or mainly on the existence of a spent conviction.
Treatment Whilst In Employment And Dismissals
If your employer or colleagues become aware of your spent conviction and you find yourself being harassed, bullied, or otherwise mistreated because of it, then you should first bring it to the notice of your line manager or their immediate supervisor, in an informal way.
If this does not resolve the issue, you may seek to make a formal complaint, via your organisation’s grievance procedure. You can also take help from the ACAS Guide to Grievance Procedures.
The most serious and obvious form of misconduct resulting from the knowledge of your spent conviction is dismissal. Employment law in the UK deems all such dismissals as unfair (and will guarantee a resolution at an employment tribunal, should you make an unfair dismissal claim), but only if you have more than 2 years’ service.