The government recently published a new Employment Rights Bill, which presents an opportunity to make the existing rights of people with criminal records in recruitment and employment easier to understand and therefore more accessible.

The Rehabilitation of Offenders Act (ROA) sets limits on what information potential or current employers can collect and hold about someone’s criminal record. It introduced a right for people to move on from their criminal history, which means that once your caution or conviction becomes spent, you don’t have to disclose it (apart from in certain exceptional situations).

Yet in practice, due to the complexity of the criminal records system, employers may collect data that you have a right not to disclose. Then employers use the information they should not be collecting to make decisions about recruitment or employment.

It can be very difficult for people to challenge these decisions and prove that an employer used their data unfairly. It can also be very difficult for employers to understand what they need to do to comply with ROA legislation. So Unlock are setting out three ways in which the new bill could better protect both businesses and people with criminal records.

The ROA clearly sets out the right for protection from being unfairly dismissed on the basis of a spent caution or conviction. But in practice, people have to challenge such decisions via tribunals which can be very difficult. We are therefore calling for a spent conviction to be an automatically unfair basis for dismissal, ensuring this right is more accessible.

Employers are generally not allowed to use information about a spent caution or conviction during the recruitment process (apart from specific exceptions). However, due to the complexity of the criminal record system, employers can sometimes collect this data inadvertently through unclear questions or applicants over-disclosing. Or, if employers carry out internet searches on applicants, they may find information about a spent caution/conviction without realising it. We think more clarity on this could be introduced by saying it is an offence for employers to use data about a spent caution or conviction.

Employers are permitted to exclude applicants on the basis of an unspent caution or conviction. However, Unlock believes that people shouldn’t be dismissed on this basis after they have been recruited. So if employers either decide not to ask about someone’s criminal record, or decides to recruit them, after they have disclosed their criminal record, it should not be fair to fire people purely on the basis of that criminal record at a later stage.

Read Unlock’s full briefing