Recent research by the charity Unlock reveals that nearly 75% of national companies continue to ask about criminal records as part of their job application processes, and 22% of potential employers are still asking unlawful or misleading questions. 80 employers were surveyed, 77 of whom had application forms for jobs. Of those 77, 70% asked about criminal records on the forms and, of them, 80% gave no guidance on when a criminal conviction becomes spent.
So what does the law say? Under the Rehabilitation of Offenders Act 1974 (ROA), to all intents and purposes spent convictions are irrelevant in application processes and candidates may, if asked, respond as if those convictions did not exist. An employer refusing a job on the basis of a spent conviction would be in breach of the ROA, although the Act gives candidates no actual mechanism to challenge such decisions. Unspent convictions are different – candidates can legally be asked to declare those and be questioned about them, and employment may be refused on account of them. Cautions, it should be pointed out, are spent immediately.
The situation was complicated somewhat by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, which listed certain occupations (including doctors and others in the medical profession, vets, members of the legal profession, accountants, teachers, judges, police officers, probation and prison officers, taxi drivers, those who work with children or vulnerable adults and air traffic controllers) as still requiring candidates, if asked, to disclose spent convictions or cautions other than “protected” spent cautions and convictions. The Order made it legal to refuse employment as a result. Application forms should make clear whether a post is excepted from the ROA.
With the advent of GDPR this has become a still more difficult matter for employers. As there must be a demonstrable necessity to process criminal records information whenever it is done, it is unlikely that it would be lawful at application stage. Therefore, to comply with the Data Protection Act 2018, employers should only question candidates about spent convictions or cautions at all, on application forms or in interview, if is directly relevant to the post on offer and that post is in an excepted occupation or profession. Even then there must be a GDPR policy in place that is communicated to candidates. This must set out a clear legal reason why this data may be processed, how it will be processed and, in due course, how it will be erased. The candidates’ legal rights in relation to the data must be explained.
Where unspent convictions are concerned there is more scope to ask questions, but employers should still give careful consideration to whether the information is actually relevant to the job and, if so, they should ensure that the legally required policies are in place and clearly communicated.
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