Reduction in time periods for the disclosure of criminal convictions

On 28 October 2023, reforms under the Police, Crime, Sentencing and Courts Act 2022 came into force which amended the Rehabilitation of Offenders Act 1974. The reforms significantly reduce the time after which certain criminal convictions become “spent” and therefore no longer need to be declared to prospective employers, education institutes, insurance providers and housing authorities.

By way of reminder:

  • An unspent conviction will appear on an individual’s criminal record and will show up on any DBS check (Basic, Standard and Enhanced). Unspent convictions must also be declared if an individual is asked about them.
  • A spent conviction will not appear on an individual’s criminal record and will only show up on Standard or Enhanced DBS checks (unless the conviction is subject to the filtering rules). Spent convictions must only be declared if the individual is applying for an excepted role. There are around 70 roles which are excepted, including teacher, accountant and police officer.
  • It is unlawful for an employer to refuse an individual a role if they have a spent conviction, unless it makes the individual unsuitable for the role or the role is one which is excepted.
  • If the position is excepted, an employer may refuse to employ an individual. An employer must exercise their judgment when deciding whether to employ that individual. When making that decision, employers should carry out a risk assessment considering whether the conviction is relevant to the position, the seriousness of the offence and the length of time since the offence was committed.

The new rehabilitation periods in force following the reforms are:

SentenceAdultsUnder 18s
(Adult) Community Order/Youth Rehabilitation OrderThe last day on which the order has effectThe last day on which the order has effect
Custody of 1 year or less1 year6 months
Custody of more than 1 year and up to 4 years4 years2 years
Custody of more than 4 years (excluding serious sexual, violent, or terrorist offences, that continue to never be spent)7 years3.5 years

The previous rehabilitation periods were:

SentenceAdultsUnder 18s
(Adult) Community Order/Youth Rehabilitation Order1 year beginning with the last day on which the order has effect6 months beginning with the last day on which the order has effect
Custody of 6 months or less2 years18 months
Custody of more than 6 months and up to 30 months4 years2 years
Custody of more than 30 months and up to 4 years7 years3.5 years
Custody of more than 4 yearsConviction is never spentConviction is never spent

The Government estimates that these changes will benefit nearly 125,000 people sentenced in 2022 alone. It is also anticipated that the changes will help reduce the £18 billion which the Government spends each year to combat those who reoffend. This belief is backed by Government research suggesting former offenders in steady employment are nine percent less likely to commit further crimes.

The changes will likely have two effects on businesses.

Firstly, as convictions become spent sooner, an employer not recruiting for an excepted role will more often be placed in a situation where it would be unlawful for them to refuse employment on the basis of a spent conviction.

Secondly, there may be an increased requirement for employers to exercise their discretion when a DBS check for an excepted role shows spent convictions (although there is specific legislation for certain sectors). Should an employer exercise that discretion and decide to dismiss an employee, they could face a claim for unfair dismissal. That being said, job applicants for an excepted role will not have the requisite two years’ qualifying service, and will not therefore be able to bring such a claim. As there is no stand alone claim for failing to employ someone with a conviction, the job applicant would have limited options. They may however have grounds to complain to the Information Commissioner’s Office for an employer’s improper processing of their personal data.

If you would like to discuss how these changes may effect your business’ recruitment and HR decisions you can contact the Employment Team at Sintons.

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