New Deal talking points: rehabilitation of offenders - will the government’s reforms fill the gaps?

Under the law on rehabilitation of offenders an employer cannot properly reject an application from someone because of a a conviction that has become “spent” and, if recruited, cannot properly dismiss them because of that conviction. We look at what that means in practice for both employers and people with convictions and the extent to which the government’s new Employment Rights Bill will affect things.

What is a spent conviction?

If you are convicted of an offence, in most cases you are treated as “rehabilitated” after a set period of time, the length of which depends on your sentence. Once rehabilitated, your conviction is considered “spent”. In most cases, if you have a conviction that is spent, you are treated as someone who has not been convicted. It no longer needs to be disclosed even if you are asked about it. There are however exceptions for example if you were convicted of serious violent, sexual or terrorism offences or if you are applying for a job working with children, vulnerable adults or in certain professions. The legislation aims to support people who have been convicted to move on and put what they did in the past.

How long before a conviction is spent?

The period of time for rehabilitation depends on the sentence. For example, if you are sentenced to imprisonment for over four years, you are considered rehabilitated seven years after your sentence is completed. If you are sentenced to less than a year, you are considered rehabilitated 12 months after your sentence is completed. If you receive a fine, your conviction will be spent 12 months after the sentence was imposed. Somewhat surprisingly (perhaps), if you commit a motoring offence and receive an endorsement on your licence, you are not considered rehabilitated until five years after your conviction.

Effect of a spent conviction

In most cases, if you have a conviction that is spent, you are treated as someone who has not been convicted. Although there are exceptions if you want to work with children, vulnerable adults or in certain professions, this means that you do not need to mention a spent conviction if asked about it.

Putting this into practice

Although an employer should not refuse to recruit or dismiss because of a spent conviction, there is currently little that you can do if that happens – unless you have the two year service needed to bring a claim for unfair dismissal. This can work unfairly:

Andy was sentenced to six years for robbery of a jewellery shop in 2010.After release, he put the past behind him and had various steady jobs.In 2022, he applied for a job working for a travel agent.He had good references and was successful.Shortly after he started work, a colleague “googled him” and found a report of the robbery; he told Andy’s manager.When asked by the manager, Andy said he had been convicted and that the conviction was in the past and spent.The manager dismissed him saying that they wouldn’t take the risk with robbers.Because Andy had less than a month’s service, he could not claim unfair dismissal.
Amy had a conviction for assault causing actual bodily harm following a drunken night in a pub.The conviction was spent.She had just split up with her boyfriend and started a relationship with a woman.She applied for an IT role working for an outsourcing company who seemed to be keen to recruit her.Her ex-boyfriend found out about this and, as “pay back”, told the HR team at the outsourcing company about her spent conviction.The outsourcing company went quiet and eventually said they did not think that Amy would be a “good fit”.When she pushed them, they said that assaulting people did not conform to their values and they refused to recruit her.

Despite the rehabilitation legislation stating that having a spent conviction is not a proper ground for rejecting a job application or dismissing, neither Andy nor Amy had any legal remedy. Though the problem has been recognised for 50 years, nothing has been done!

This legislative gap is exacerbated by the “google effect”. It is only a short step from looking legitimately at an applicant’s linkedin profile to doing a wider search which may uncover historic spent convictions.

A short-term fix?

Although the Employment Rights Bill has not been published yet, the government says that it will remove the qualifying period for unfair dismissal – and that it will become a “day 1” right. We have written more about this here.

For the future someone in Andy’s position is likely to have a solution of sorts – though it will depend on the normal test of fairness. Any future changes in the unfair dismissal qualifying period would also impact this solution. And a future Amy would still be unable to do anything because she was only applying for a job and never became an employee.

A long-term solution

The rehabilitation of offenders legislation came into force in 1974 – exactly 50 years ago. At that time, unfair dismissal law was in its infancy. Although the basic rules on fairness were similar, the rules on dismissal for prohibited or “bad” reasons had not evolved. So the gap in protection arises largely for historic reasons.

Now, where an employee is dismissed for a statutorily “bad” reason, that dismissal is considered automatically unfair regardless of length of service or any need to consider procedural matters such as warnings. There is a regularly expanding list of circumstances in which dismissal is “bad” and will be automatically unfair. Examples include dismissal:

because of pregnancy or the taking of maternity leave or for taking time off for ante-natal care;
for family-related reasons such as taking parental leave or paternity leave;
for acting as an employee representative or pension trustee;
for asserting a right under part-time workers legislation;
related to the national minimum wage;
for claiming rights under working time legislation;
for reporting wrong-doing (whistleblowing);
for doing jury service.

Dismissal because of a spent conviction is analogous. Were the rehabilitation of offenders legislation being enacted now, it would almost certainly take the same approach.

Even with this kind of wider protection, someone who is rejected during a recruitment process would not be covered. If the government is looking for a model to cover these scenarios, there are equivalent rules relating to recruitment in relation to discrimination and use of prohibited “blacklists” of union members.

Recruiting people with convictions – what should employers do?

The Government has produced guidance on recruiting people with convictions (see Employing prisoners and ex-offenders - GOV.UK (www.gov.uk)). Although employers' thinking on this will depend on their particular context and any relevant roles, the guidance identifies reasons to explore working with people with convictions such as reducing recruitment costs, increasing diversity, social responsibility, reducing absence, addressing skills gaps and increasing retention.

Points employers should consider to ensure recruitment and onboarding is inclusive include:

Do we need to ask about criminal convictions at all?In many cases, there will be no need to ask.
If we do ask and someone discloses a conviction, how do we make a decision on whether it matters.Is it relevant to our recruitment decision?
Make it clear that you are not asking about spent convictions – unless you are entitled to do so (for example, for a role working with children).
If someone discloses an offence, consider matters such as:

that person's age at the time of the offence;
how long ago the offence took place;
whether it was an isolated offence or part of a pattern of offending;
the nature of the offence;
Its relevance to the post or position in question; and
what else is known about the person's conduct before and since the offence.

If you need to ask about convictions, ask at the right time.See the comments in the government guidance mentioned above about “Ban the Box”. Under this campaign, businesses commit to removing any tick box from job application forms that asks about criminal convictions and, if necessary, moving this question to later in the recruitment process.This means you fairly consider an applicant’s skills, experience and ability to do the job before asking about convictions.
If you are going to ask about convictions, make sure that you comply with data protection law and meet the prescribed conditions for processing data relating to criminal offences.

If you would like to discuss any of the issues mentioned above, please contact Zoe Ingenhaag.

For more analysis of Labour’s plans and other articles in our talking points series, visit our Labour Policy Impact Hub.