Do you ask your employees for information about their criminal convictions? If so, you ought to be aware of recent changes in the law governing what they are obliged to tell you and when.
The basic position
Since the Rehabilitation of Offenders Act 1974 came into force, the basic position has been that employees are only obliged to disclose to their employer relevant details of ‘unspent’ criminal convictions. How long after serving one’s sentence a conviction becomes ‘spent’ depends on the nature and seriousness of the conviction itself.
In simple terms, until now, prison sentences of up to 6 months have only been disclosable for two years, whilst sentences in excess of 4 years were never ‘spent’. Prison sentences between 6 months and 4 years have been disclosable for either 4 years or 7 years, depending on the circumstances.
With effect from 28 October 2023, prison sentences of up to one year are now only disclosable for one year. Sentences of between 1 year and 4 years are disclosable for 4 years. Prison sentences in excess of 4 years may only be disclosable for up to seven years, although special rules apply to more serious sexual, violent, or terrorism offences. Convictions for these crimes may never be spent.
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It's important to bear in mind that any information about criminal convictions is likely to constitute as a ‘special category’ of personal data under data protection laws. This means that employers need to be particularly careful about the manner in which they hold and process information of this nature.
If you currently ask your employees or job applicants about their criminal convictions (or are thinking of doing so), please get in touch for further advice.