To disclose or not to disclose?

by Lara Murray (Basildon) and Karl Barnes (Thurrock).

When applying for a job, it is not unusual to be asked on the application form whether or not you have any criminal convictions.

The impact of making such a disclosure will vary depending on the nature of the job being applied for, but it is, understandably, a source of concern for many applicants – particularly where a conviction is relatively minor and part of a life which the applicant has long since left behind.

The Government has made changes to the Rehabilitation of Offenders Act 1974, reducing the period during which certain convictions must be disclosed to potential employers.

Under the changes, which are contained in the Legal Aid, Sentencing and Punishment Act 2012 and come into force on 10 March, certain offences will only have to be disclosed for two years after a custodial sentence (that is to say, a prison sentence) has been completed.

This means that custodial sentences of:

  • up to six months will only have to be disclosed for two years (previously seven years from the date of conviction, rather than after the completion of a sentence);
  • six to 30 months will only have to be disclosed for four years (previously 10);
  • 30 months to four years will only have to be disclosed for seven years (these would previously remain unspent).

Sentences of more than four years will remain unspent, as before. Offenders will always have to declare previous convictions when applying for jobs in sensitive workplaces like schools and hospitals or working with people in vulnerable circumstances.

There will also be changes to disclosures relating to non-custodial sentences. Community orders (including youth rehabilitation orders) will only have to be disclosed for one year from the end of the sentence, rather than five years from the date of conviction.

Fines will have to be disclosed for just one year from the date of conviction, rather than five years, while there will no longer be any requirement to disclose an absolute discharge (previously six months). For conditional discharges, referral orders, reparation orders, action plan orders, supervision orders, bind-over orders and hospital orders, disclosure will be for the period of the order.

All of the relevant periods are halved for people who are under 18 at the date of conviction, except for custodial sentences of up to six months, where the disclosure period will be 18 months for people who are under 18 at the date of conviction.

The Government hopes that these changes will help more offenders get back into work without the barriers that might previously have prevented them from gaining employment.

If in doubt about your rights or obligations as an employee then you should seek professional advice from an employment law expert.

For further information on this or any other employment law matter, please contact us on 01268 240000.