Spent and unspent convictions and employment law

 

Aim of this page

The aim of this page is to give you an overview of how your criminal record can affect your employment, and what remedies are available should something go wrong.

The information contained here is intended to be very basic; if it doesn’t answer your questions, or you have any doubts about whether or not you should raise an issue with your employer or commence legal proceedings, we would recommend that you seek legal advice.

There are some instances where it may be appropriate (or necessary) for Unlock to take on your case and provide you with individual help and support.

It’s part of our information on looking for and keeping work.

Why is this important?

  • Employers can be influenced by a great deal of prejudice when dealing with someone who has a criminal record.
  • Despite the fact that 1 in 3 of the adult male population has a criminal record, not all employers are entirely clued up on what their obligations are when dealing with those who have a criminal record.
  • If you have an unspent conviction, you have very little legal protection when applying for work.
  • However, it is unlawful for an employer to subject you to any ‘prejudice’ because of a conviction if it is now spent, for jobs where the Rehabilitation of Offenders Act (ROA) 1974 applies. In practice, this should not arise very often, as it would be difficult for an employer to discover a spent conviction without a standard or enhanced Disclosure and Barring Service check (which should only be done for roles exempt from the ROA), or through your own admission.
  • It is possible that an employer could learn of your conviction inadvertently (e.g. through others), so it’s important to know what legal rights you have.

Seeking employment with a spent conviction

The general rule

The Rehabilitation of Offenders Act 1974 (ROA) allows most convictions to be considered spent after a set period of time. Unless you receive a prison sentence of over 4 years or have any type of indefinite order, your conviction will become spent at some point.

Once your conviction is spent, this entitles you (for jobs where it applies to), in basic terms, to portray yourself as somebody who has never been convicted, i.e. it allows you ‘to legally lie’ (subject to the exceptions listed below).

Spent convictions should not be used as evidence in employment tribunals, without the consent of the person concerned and questions should not be asked that would elicit or hint at such information.

If your contract of employment asks you to disclose your convictions, you would not be required to disclose any that are spent (see section 4(3) of the ROA). As a general rule, you would not be breaching any employment contract if you failed to disclose a spent conviction and, if you were dismissed for failing to disclose a spent conviction, then you may have legitimate grounds to bring a case of unfair dismissal.

The exceptions

Certain jobs do require you to disclose spent convictions, as these jobs are exempt from the ROA.

However, you should only disclose when you are sure that you are applying for a position that requires you to do so. The vast majority of jobs and professions are not covered by these exemptions and a request to disclose spent convictions can be ignored unless the position is exempt.

Below is a brief list of the types of jobs that might require you to disclose spent convictions:

  • Doctors, dentists, midwives and nurses
  • Solicitors
  • Accountants
  • School based jobs
  • Jobs with social services providers
  • Jobs that involve the supervision or training of people under the age of 18

We have put together an A-Z of job roles and their eligibility for basic, standard and enhanced criminal record checks that may help you to decide whether a role is eligible for a standard or enhanced check. If an employer asks you to disclose spent convictions for a role which you believe is covered by the ROA, then you should try to establish why an employer is looking to do this level of check and if necessary, challenge the eligibility.

If you have to undergo a standard or an enhanced criminal record check as part of any recruitment process, then this will result in an employer discovering your spent convictions and cautions unless they are eligible for filtering from these checks.

Applying for jobs covered by the ROA with a spent conviction

Making your application

If you’re asked about whether you have a criminal record, either on an application form or during a job interview, then legally you can answer ‘no’ if it is spent.

However, this does not prevent you from discussing or revealing your conviction if you chose to, although this is unnecessary and in most cases unlikely to be your best option. If you have any gaps in your employment record which you would find difficult to explain without disclosing your conviction or, you believe that an employer may find out in some other way, then you may decide to disclose. It’s important to remember that you are under no obligation to disclose and you should consider your position carefully before you do so, as although employers should not use a spent conviction to penalise you, in practice, it is difficult to stop them if they do.

Being refused a job

The ROA makes it unlawful for an individual to be excluded from any job (other than those not covered by the ROA) on the basis of them having a spent conviction. Therefore, if you’ve been denied a job purely because you have a spent conviction, then you may be able to bring litigation based on a ‘breach of statutory duty’.

To the best of our knowledge however, this has never been tried before, so we would recommend that you seek legal advice before you consider commencing proceedings. In addition, you would have to be able to prove that the decision not to offer you the position was based wholly or mainly on the existence of a spent conviction, which, without clear documentary evidence is likely to be very difficult to prove.

Treatment whilst in employment, including dismissal

If your employer/colleagues become aware of your conviction and you find yourself being bullied, harassed or otherwise mistreated because of it, then you should raise this informally with your line manager. If your manager is the cause of the bullying etc then you can either arrange to talk to them and try to rectify the issue or seek out their immediate superior. Hopefully you’ll be able to sort out the problem at this point.

If not, then you will need to consider whether to make a formal complaint, via your company’s grievance procedure. If your employer has an HR department, they should be able to provide you with a copy of this. Your trade union (if you are a member) will also usually be able to provide you with advice . You may also want to have a look at the ACAS guide to grievance procedures.

The most obvious and serious form of mistreatment resulting from a knowledge of your spent conviction is dismissal. Any dismissals which are based on a failure to disclose a spent conviction will be deemed unfair (and will guarantee a finding of unfair dismissal at an employment tribunal). If you are dismissed, then it is possible that your former employer will claim a different reason for their decision at a tribunal, so you should gather as much evidence as you can to support your claim that it was your conviction that was the main motivating factor behind the decision. This can include:

  • Communication between yourself and the employer
  • Information about other employees
  • Internal communications within the organisation

It should always be your aim when going through disciplinary proceedings to avoid dismissal. You could try to enlighten the company about it’s legal obligations, by pointing out to them that they cannot legally dismiss you solely because you have a spent conviction. You might want to refer them to the ROA and the case of Property Guards Ltd v Taylor and Kershaw [1982] IRLR 175. This case contains an explicit reference to the relevant part of the ROA 1974 (S.4 (3)(b)) and clearly states that a decision to dismiss for not revealing a spent conviction is legally unfair. It may be that your employer is unaware of this and that this information leads them to change their position.

We would recommend that you seek legal advice as soon as you are notified of any disciplinary proceedings so that you are able to mount the best possible defence and have the greatest possible chance of avoiding dismissal.

Applying for jobs exempt from the ROA with a spent conviction

Making your application

If the job you are applying for is exempt from the ROA you will legally have to disclose all cautions and convictions unless they are eligible for filtering.

Being refused a job

The potential for legal action if you are refused employment because of a spent conviction is, as mentioned above, somewhat uncertain. However, if you are applying for a job which is exempt from the ROA, then the position is much clearer; there is very little that you can do.

If a job is exempt from ROA then generally, it is also exempt from the legislative protective elements as well.

Treatment whilst in employment, including dismissal

The initial position is the same as above. The exemption strips you of the ROA’s protection and you will not be able to use it to defend yourself in concealing a conviction.

However, this does not deny your right to file a grievance if you are unfairly treated or a claim with an employment tribunal if you are dismissed. Being dishonest about a spent conviction does not automatically entitle an employer to dismiss you or subject you to negative treatment, although it may make your actions seem more reasonable to a tribunal than might otherwise be the case.

Seeking employment with an unspent conviction

Applying for a job

If your conviction is unspent, then you do not have the legal protection of the ROA and cannot answer ‘no’ when asked if you have a criminal record.

This is a question that you will need to be prepared for, as most application forms will contain it in some form. The lack of ROA protection means that there is nothing to prevent a potential employer from asking you the details of these convictions if you admit to having a criminal record. Many companies have a ‘Recruitment of Offenders’ policy and you should check if your potential employer has one and what it says so that you know what to expect.

The ROA is not designed to enforce disclosure of unspent convictions; it is a protective law, not one aimed at making life difficult for those who do not benefit from it’s protection. This means that if information about your criminal record is not sought by an employer, then there is no legal need for you to disclose your unspent convictions and nor should you be penalised if these are later discovered.

If you are dismissed for such a reason, it may be worth considering an unfair dismissal claim and raising this point during any internal appeal. Whether or not the dismissal was lawful would depend on what you were asked and what factors you put forward in the interview as qualifying yourself for the job. For example, if you described yourself as trustworthy, but had dishonesty convictions, then this could count against you, even if you were not asked about such convictions.

In practice however, it is more than likely that the question will be asked. If it does not come up on the application form or the interview, then you should still be prepared for it to form part of your contract of employment that you disclose any convictions. This is a standard term in a lot of employment contracts and perhaps explains why it is important to ensure that you read and understand the terms of your contract before you accept a job offer.

If you disclose your conviction, it is important to be as honest as you can be. A failure to do so is likely to lead to dismissal in the event that any lie is discovered and could also, potentially, lead to civil litigation (for breach of contract) and even further criminal charges. Both of these would cause serious problems for a person seeking to turn their life around and could prove costly both financially and personally.

Being refused a job

Unfortunately, this is one of those situations where there is very little you can do.

Although the intention of the ROA was to attempt to make life easier for people with certain types of criminal record, it did not include any provisions regarding the appropriate treatment of all the others. In the intervening years, little or nothing has been done to alter this situation. There is no legal concept of ‘discrimination on the basis of having a criminal record’, as there is for discrimination on the grounds of age or disability.

Your treatment, therefore, will only create a legal claim if it would do so for someone without a criminal record. Where you are refused a job because of your race, sex, religion, nationality, age or some other characteristic protected by the Equality Act 2010, then you can bring an action at an employment tribunal.

Otherwise, the law as it stands, permits an employer to recruit whom he wants; it will not question his reasons or his motives. Refusing to employ someone for having a conviction cannot be the cause of a legal claim, in the same way that an employer cannot be sued for refusing to employ someone because they like watching Eastenders; there is no obligation to engage in reasonable or rational decision-making when choosing employees.

Treatment whilst in employment, including dismissal

The position here is essentially the same as in the sections above on treatment based on a spent conviction and recruitment. Having an unspent conviction is not a characteristic afforded legal protection; how to proceed will therefore depend on factors other than your conviction.

Dismissal for non-disclosure of an unspent conviction

If you fail to disclose an unspent conviction when you are asked, this could result in your being dismissed should the conviction be discovered later. An employer would usually be able to justify the dismissal on the basis that you breached your contract and that your dishonesty was a breach of the term of mutual trust and confidence implied in your employment contract. An employer should still take the time to investigate the reason for the non-disclosure fully and come to a reasonable conclusion – he can’t simply take the decision without consideration. It is usually difficult to convince an employment tribunal that dismissals of this kind are unfair.

Another issue is that you would almost certainly have a credibility problem as you’re starting out with an open admission that you acted dishonestly by lying about your criminal record in order to obtain employment. If you are merely questioning the legal fairness of the employer’s decision, this may not do you too much harm. However, if you are questioning the employer’s account of events (for example by claiming that he is using the lie as a pretext for an unlawful dismissal), then a lack of credibility could prove fatal to your case. You would need some very strong independent evidence or be a very convincing witness in order to win in such circumstances.

Don’t be discouraged from bringing a claim but think carefully about how you would address the obstacles highlighted above. If your conviction were for a minor offence or had no relevance to your suitability for the job then it might be possible to argue that the decision to dismiss you was unreasonable, notwithstanding the deception.

Dismissal for a known conviction

It is possible that even when you are honest about your conviction, your employer could later decide to dismiss you because of its existence. If this happens, then any employment tribunal case would proceed in the same way as any other unfair dismissal case. Your employer will need to demonstrate that the decision they made was fair.

If you received the conviction prior to being recruited and the employer was aware of it at the time they hired you then, it is likely that a dismissal made purely on the basis that you had such a conviction would be unfair.

This does not mean that all cases where you are dismissed for openly known about convictions will result in findings of unfairness. It may be, for example, that the nature of your employment has changed to such an extent that your conviction now relates more directly in your day-to-day work or your suitability for the role. Examples of such situations would be where:

  • You have a dishonesty conviction and your job changed to put you in greater unsupervised contact with money or valuable property.
  • You have a conviction related to children and your role now brings you into closer or more contact with them.
  • Your conviction is related to driving and your role is being changed to include driving duties.

However, none of these examples alone would necessarily make your dismissal fair. The circumstances that led to the dismissal and the exact relationship between your conviction and the change in duties would often still be open to argument and an employer would, at the very least be required to consider (but not necessarily provide) alternative employment within the company.

It is also possible that a conviction could lead to it being more likely that a tribunal would find it reasonable for an employer to draw conclusions in misconduct cases; for example, where you are accused of violence, dishonesty or drug use and have a conviction that proves past incidents that are of a similar nature. This does not mean however, that a conviction will automatically induce an employer to find you guilty in such circumstances and a tribunal would expect a proper investigation of the allegations.

Dismissal in cases of resignation

If your conviction leads to your being mistreated by your manager/colleagues then you may decide that you have no other option but to resign. Before things get to this stage, try to raise it through the company’s grievance procedure. This can often nip the situation in the bud. If you do make the decision to resign however, you may be able to claim unfair dismissal, referred to in cases such as this, as constructive dismissal.

A constructive dismissal case is one in which the dismissal is a result of your resignation, rather than the employer’s decision to dismiss you. If you are seeking to claim that such a dismissal is unfair, then you will likely be relying on the fact that the employer, through his actions, breached the term of ‘mutual trust and confidence’ that is implied into all employment contracts. Technically, you may be relying on the employer’s breach of any employment term, but the term of ‘mutual trust and confidence’ is the most commonly used in such circumstances. Proving this has been breached is no easy task and will require significant negative action from the employer or his staff. Simply hurting your feelings is unlikely to justify a claim that there has been such a breach.

In cases of a single action or comment, the humiliation or upset that it causes would have to be severe, and your response to it would have to be reasonable. Resigning because someone made a single joke about your conviction would be unlikely to meet this standard, but a single unjustified and baseless accusation of misconduct or criminal actions could, in certain circumstances, be serious enough to justify resignation.

The other scenario is where a string of incidents lead to a ‘final straw’ event that means that you feel you have no choice but to leave your employment. An example of this could be where constant negative references or ‘jokes’ are made about your conviction, to the extent that you are constantly being humiliated. Another example could be where you are consistently blocked from opportunities for advancement, training or other benefits open to your colleagues. In the ‘final straw’ scenario, the bar for the significant trigger incident is set lower, provided you can set out that it was the last in a string of incidents that would, taken as a whole, justify a loss of trust and confidence in your employer. Going through the grievance procedure is helpful, but where this is ineffective, it is important to highlight to the tribunal why this was the case.

What comes after your resignation? Well you have to convince the tribunal that you were unfairly dismissed. There are three basic components to this:

  • That your employer committed a serious breach of the contract (as described above)
  • That you resigned because of the breach. It must be the main reason for your dismissal, rather than merely a minor motivating factor. For example, if you have had another job offer and had already decided to leave then the breach would likely not have caused your resignation. Similarly, if you had decided you wanted to stop working in retail and move into sales, the breach is also unlikely to have caused your resignation.
  • That you did not ‘waive’ the breach, by unduly delaying your resignation. In constructive dismissal cases, there should not be a long break in time between the actions you claim caused the breach and your decision to resign.

It is important to know that constructive dismissal is by no means easy to prove. Resignation should always be the last resort; it can rarely be undone and should never be taken lightly. As we’ve said above, a grievance procedure can often remedy ill treatment and you should never be afraid to go to your HR department informally and make enquiries about how that procedure works in your company. However, if a grievance procedure is ineffective or inappropriate, and you are treated in such a manner that you genuinely feel that you cannot continue to work for your employer, then a resignation should be followed by you seeking immediate legal advice.

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Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.

More information

  • For practical information – More information on disclosing to employers
  • To read personal stories – You can read stories about this posted on theRecord, our online magazine, under the tag looking for (and keeping) employment
  • To discuss this issue with others – Read and share your experiences on our online forum
  • Questions – If you have any questions about this, you can contact our helpline.

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  • Doug

    If you have an unspent conviction and do not disclose it when asked and you should have, you could be prosecuted (for example under section 2 of the Fraud Act 2006). Please find attached a link to our information hub page ‘To disclose or not to disclose?’ – http://hub.unlock.org.uk/knowledgebase/to-disclose-or-not-to-disclose/. This gives more information regarding this. Doug, Unlock