To disclose or not to disclose?

On this page:

The golden rule – “You only have to disclose if you’re asked”

  1. Our general view is that you shouldn’t voluntarily disclose.
  2. If an employer wants to know, then they should ask you.

Exceptions to the golden rule – When you might disclose even if you’re not asked

Although you legally don’t have to disclose unless you’re asked, it’s sometimes not as simple as that. Technically, you won’t have done anything wrong by not disclosing if you’re not asked, but ultimately, it can be hard to challenge an employer who later finds out, particularly if you’ve only recently started the job, as you have very few legal rights. There’s a couple of scenarios that we often come across where, on reflection, individuals may have been better-off disclosing. However, this is ultimately something you have to decide in your own case.

This might apply in the following situations:

You might think that you’ve not been asked about your criminal record. However, if the employer is going to carry out a formal criminal record check, you might be better off disclosing whatever will come back on the level of check that they’ll be carrying out.

Most employment  positions that are not covered by the Rehabilitation of Offenders Act 1974 will involve a standard or enhanced check. Even if they don’t ask about convictions or criminal records during the initial recruitment process, they might state in their company policy that they will do. Yet remember – they’ll still need your consent before being able to do a criminal record check on you.

Although our general view is that people shouldn’t voluntarily disclose, some people prefer to disclose even if they don’t have to. For some roles, your past might actually help – for example, you might be applying for a ‘peer’ role.
If you’re subject to licence, probation, MAPPA or police notification, you need to be aware that these authorities may come to a decision as to whether they wish to inform a potential employer of your past (or ask you to disclose), even if the employer hasn’t asked you about convictions. This varies on a case-by-case basis, so you should keep them up to date with the details of the jobs you’re applying for.
This is a difficult scenario, because the chance that the employer might find out shouldn’t normally be enough to suggest that you should disclose even if you’re not asked. As a result, this is something which has to be decided on a case-by-case basis – for example, if your case has been featured in the local press, if you’re well-known known locally, or if you’re going into a high-profile role.
If you’re barred from working with specific groups (for example if you’re on the ‘children’ or ‘adult’ barred lists) then it is illegal for you to even attempt to work with the groups that you’re barred from.

Exceptions to the golden rule – When you might not disclose even if you are asked

This might apply in three particular situations:

Employers are only allowed to ask about certain cautions or convictions. What the employer is allowed to ask, and so what you need to disclose if they do ask, depends on the role that you’re applying for:

  1. If the job is covered by the Rehabilitation of Offenders Act, you only have to disclose unspent convictions – even if the employer asks you to disclose spent convictions too.
  2. If the job is not covered by the Rehabilitation of Offenders Act and an employer is doing a standard or enhanced check, you only have to disclose cautions and convictions that are not yet filtered – even if they employer asks you to disclose “all” cautions and convictions.
If you have strong evidence to suggest that the employer is carrying out an ineligible check, you can decide to challenge this first (particularly if you have spent convictions). For information on the types of jobs not covered by the Rehabilitation of Offenders Act, click here.
For example, you might get asked on an application form, but you might decide to disclose at interview instead. For more information on when to disclose, click here 

If you’re asked to disclose and you don’t when you should have

Some people take a risk and choose not to disclose even when they should have.

Pro’s

  1. The employer might not check
  2. You might think you’re more likely to get the job
  3. If it’s just temporary work, you might think it’s worth the risk
  4. You might want to get a chance to prove yourself before they find out

Con’s

  1. The employer could see it as a breach of trust
  2. The employer could withdraw their job offer
  3. The employer will have grounds for dismissal at a later stage
  4. You could be prosecuted – for example, under s.2 of the Fraud Act 2006. There are examples like this.
  5. If you’re on licence, you could be recalled
  6. You’ll be forever looking over your shoulder