By Miles Shepherd
Criminal Law Specialist
In the UK, when convicted of a criminal offence and sentenced to under 4 years in prison, there is a legal obligation to declare that conviction for a certain period of time following release, otherwise known as ‘spent’. 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. 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.
However, the case is different if you are sentenced to over 4 years in prison. Under the Rehabilitation of Offenders Act 1974 (ROA), such convictions never become spent and must be declared. On top of that, certain jobs require you to declare a conviction even if it has become spent under law. These include:-
- 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
Outside of these exemptions, 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. 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.
In cases where declaration is necessary, 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.
