Aim of this guidance
This guidance is to help you to:
- Understand in what situations you should ignore spent criminal records
- Put measures in place to reduce the risk of taking into account spent criminal records when you shouldn’t
- Understand in what situations you can take into account spent criminal records
The focus is on employers that have roles which are covered by the Rehabilitation of Offenders Act 1974 (ROA). For these roles, spent criminal records shouldn’t be taken into account.
Why this is important
- Most criminal records are spent – For the overwhelming majority of people with a criminal record, their record is spent.
- Spent criminal records normally don’t need to be disclosed – The majority of jobs in England & Wales are covered by the ROA. This means that spent convictions don’t need to be disclosed.
- There are obligations to disregard spent convictions – Where the ROA applies, employers are legally obliged to not take into account spent convictions.
- There might be consequences if you get it wrong – There are data protection issues if you take into account a spent criminal record when you shouldn’t.
What it means if a conviction is spent
If a conviction is spent, it means that, for most jobs (those covered by the ROA), it shouldn’t be taken into account when making a recruitment decision. If the role you’re recruiting for is covered by the ROA, you should make it clear that spent convictions do not need to be disclosed. You should also make sure that you have systems in place to ensure that you discard any convictions that an applicant discloses if they are now spent.
When to ignore spent criminal records
A range of roles and positions, both paid and voluntary, are covered by the ROA. This includes many jobs in retail, supermarkets, hospitality and office work.
If a role is covered by the ROA, it means that spent criminal records should be ignored. These roles can involve a basic check.
The case of Property Guards Ltd v Taylor & Kershaw (1982) is a helpful reference point.
When applying for a job, two security guards signed a statement saying they had no previous convictions. They were entitled to do this because their minor convictions were ‘spent’. After a few months Property Guards found out about the convictions and dismissed the men.
Held: The dismissals were unfair. The men had been entitled not to divulge their previous convictions. The convictions were spent and so covered by the 1974 Act.
Although the post of security guard is now subject to a licence with the Security Industry Authority where spent convictions can be disclosed, when applying direct to an employer (with an SIA licence in place) applicants do not need to disclose spent convictions. The same principle applies to other roles covered by the ROA.
If a role is not covered by the ROA (also known as ‘exempt’), it means that most spent criminal records can be taken into account. These roles can involve a standard or enhanced check.
How you might end up knowing about spent records
- You might have asked a misleading question which suggested that spent convictions needed to be disclosed when they didn’t
- The applicant may not know that they didn’t need to disclose it
- If you carry out a basic criminal record check, a mistake might be made on the official disclosure, disclosing something that shouldn’t be there because it’s now spent
- If you’re relying on an old basic check, information on there may have since become spent
- It might be referred to in a reference from a previous employer
- You might have found out about it online or through a member of the public
How to establish whether a record is spent
If you do basic criminal record checks, spent convictions won’t show on a basic disclosure certificate. If you don’t do checks, or if you ask people to disclose before you do a check, you should use guidance and tools that can help you to work out whether a conviction is spent. Unlock has developed a disclosure calculator to help work out when convictions become ‘spent’.
Good practice tips
To reduce the risk of taking into account spent criminal records when you shouldn’t:
- Be clear right from the start whether a role is covered by (or exempt from) the Rehabilitation of Offenders Act 1974 (ROA)
- If the role is covered by the ROA:
- Make it clear that spent criminal records don’t need to be disclosed
- Use a ‘type 1’ question at the point when you ask about criminal records
- If an applicant self-discloses a criminal record, check that it’s not spent before you think about taking it into account
- If the role is exempt from the ROA, read our guidance on ignoring filtered criminal records
- If you’re doing a criminal record check, consider waiting until the certificate is issued before considering the applicant’s criminal record.
