A criminal record includes convictions and cautions. A caution includes conditional cautions, reprimands and final warnings.
Asking about criminal records
There are two areas of law to consider before you ask about criminal records or conduct a criminal record check:
1. Data protection: the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA).
2. The Rehabilitation of Offenders Acts (or Orders in Northern Ireland) and their associated exceptions orders that say you must not ask about convictions that aren't 'spent' unless they are for some specific 'excepted' roles (see below).
If you request and process information relating to criminal offences you must comply with the General Data Protection Regulation (GDPR) and the Data Protection Act 2018.
For general information, see our section on. You may also wish to refer to the Information Commissioner's Office's website, in particular its .
However, the Information Commissioner's Office has not as yet, provided guidance on this area. Until it is received or there are some comments by the courts or tribunals, it will be difficult for employers to know when to ask about an applicant's criminal record.
If you do conclude that you're entitled to ask whether an applicant has any criminal convictions in a job application form, you should have facilities in place to protect the confidentiality of this information. You must also properly handle the applicant's responses according to the General Data Protection Regulation and the Data Protection Act 2018.
In addition, you should also indicate in the form that you do not expect applicants to disclose spent convictions. Ideally, you should use a separate criminal convictions declaration form to get information about criminal convictions from a job applicant.
You need to take care that a conviction that is not 'spent' (see below) when it is first recorded in the personnel files is properly handled if and when it later becomes spent.
Certain convictions are considered 'spent' once a period of time passes. This is known as the 'rehabilitation period'. The length of the rehabilitation period depends on the type and length of sentence, as well as the age of the offender at the time of their conviction. The more severe the penalty, the longer the rehabilitation period.
After the rehabilitation period, and as long as the applicant does not re-offend during the rehabilitation period, their conviction is considered to be 'spent'. They will then become a 'rehabilitated person', which means they must be treated as a person who has not committed, been convicted of, or charged with the criminal offence, i.e. they can hold themselves out as having a clean criminal record.
Length of rehabilitation periods
The rehabilitation periods differ slightly depending on where in the UK the offender lives. For example, if the offender lives in England, but the offence is committed in Scotland, then the rehabilitation period for England will apply.
In Scotland and Northern Ireland, the rehabilitation periods start from the date of conviction. In England and Wales, the periods are based on the length of the sentence plus an additional specified period.
For more information on the rehabilitation periods for each country, see:
As mentioned above, a rehabilitated person is not usually obliged to disclose that they have a criminal record.
However, both spent and unspent convictions must be disclosed if the occupation is listed in the:
Occupations contained in the above legislation are known as being 'excepted', meaning they may be taken into account in recruitment decisions.
If a post is an excepted post, the applicant should reveal certain types of spent convictions or spent cautions if asked about them. A caution includes conditional cautions, reprimands or final warnings.
The list of exempt posts – i.e. posts for which an applicant may have to take spent convictions into account – broadly covers:
Applicants for these types of jobs must reveal all spent convictions, unless all of the following statements are true:
Applicants for these types of jobs must reveal all spent cautions, unless all of the following statements are true:
Even for most excepted posts, the DBS will filter out from checks spent convictions and spent cautions for less serious offences. Accordingly, applicants will not have to disclose these. Spent convictions and spent cautions for more serious offences (known as 'listed' offences) are still disclosed. See thefor more information.
However, the English courts have ruled that the current legislation is unlawful because it sometimes makes it unfairly difficult for individuals to get jobs.
A disclosure certificate from AccessNI will not contain certain convictions and cautions for minor or old offences. Seefor more information.
However, for most roles an employer should apply judgment in deciding how relevant an offence is to the role in question. It's recommended that you don't have a blanket ban on employing ex-offenders and instead carry out an assessment of the relevance to the position.
A higher-level disclosure certificate from Disclosure Scotland will not contain certain convictions for minor or old offences if a spent conviction appears on the list ofand is a 'protected conviction'. See for more information.
Official criminal-record checks should be considered if the applicant is applying for an excepted post or if they will be working with children and/or vulnerable adults. It should be obtained with the knowledge and consent of the applicant. The methods of obtaining a criminal record check and the type of information available vary slightly between England & Wales, Scotland and Northern Ireland.
There are 4 different types of checks (disclosures) that can be undertaken:
Criminal record checks for England and Wales are undertaken by theor 'DBS'. Generally, an employer is unable to get a disclosure from the DBS. However, both of the 'enhanced' DBS disclosures are available for employers employing staff who work with vulnerable people (e.g. children and the elderly) or for posts that are exempt from the Rehabilitation of Offenders Act 1974.
In Scotland criminal record checks need to be carried out through. Applications can be made for basic, standard and enhanced disclosure. However, the law in Scotland is also being reconsidered.
In Northern Ireland criminal record checks need to be carried out through. Applications can be made for basic, standard and enhanced disclosure.
Employers have a legal requirement to perform additional checks if the job involves working with children or vulnerable adults. The law requires that if the role involves working with children or vulnerable adults in a, then:
Ideally the enhanced DBS check should be obtained before offering someone the job, otherwise you should make the offer subject to obtaining a satisfactory report.
Scotland has a separate, but aligned scheme, called '. The PVG Scheme only applies to people who work with vulnerable groups and it does not apply to personal arrangements that people make with friends or family, or to work positions where there is no opportunity to cause harm to vulnerable groups. It is run by Disclosure Scotland.