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Employing ex-offenders | Changes to disclosure periods for criminal convictions in England and Wales
Written by Lesley Rennie on 27 November 2023
In a groundbreaking move toward reducing reoffending and reintegrating ex-offenders, the UK government has revised the law surrounding the disclosure of criminal convictions in employment in England and Wales.
The reforms, which came into force on 28 October 2023 under the Police, Crime, Sentencing and Courts Act 2022, shorten the duration of time during which individuals are obligated to disclose previous criminal convictions to prospective employers.
It is hoped that this will remove barriers to societal integration and empower individuals with a criminal history to rebuild their lives and make positive contributions to the workforce.
What's changing and why?
The Rehabilitation of Offenders Act 1974 (ROA) primarily serves to aid the reintegration of individuals with convictions into the workforce, offering a chance for those who have ceased offending to rebuild their lives.
Under the ROA, each custodial sentence has an associated ‘rehabilitation period’ – the length of which varies according to the type of criminal conviction. Once the rehabilitation period has lapsed, the conviction is deemed ‘spent’, and workers are no longer obligated to disclose it to potential employers.
Further, any dismissal based on the existence of a spent conviction or a refusal or failure to disclose a spent conviction is likely to result in an unfair dismissal, although the employee would require qualifying service to bring such a claim.
This legal mechanism aims to offer individuals who have served their rehabilitation period an opportunity for a fresh start, enabling them to move forward without the continued burden of disclosing past convictions in the pursuit of employment.
Until recently, however, the rehabilitation period for certain offenses meant that some individuals were required to disclose their sentences for the rest of their lives, hindering employment opportunities and perpetuating the stigma associated with a criminal record.
To combat this, and create avenues for ex-offenders to secure employment, rehabilitation periods have now been reduced in England and Wales as follows, subject to some exceptions:
- For custodial sentences exceeding four years, the rehabilitation period is now seven years. Previously, such convictions were never spent, meaning employees would have to disclose them indefinitely.
- Sentences ranging from one to four years are now considered spent after a four-year rehabilitation period, provided no further offenses occur.
- Shorter sentences of a year or less will be spent after one year. Previously, sentences between six months and one year were not spent until after four years had passed.
In all, these changes to criminal record disclosure periods are expected to positively impact nearly 125,000 people sentenced in 2022.
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Are there any exceptions?
Yes. It’s important to note that:
- These changes to rehabilitation periods are not applicable to offenders who have committed serious sexual, violent, or terrorist offences.
- Stricter rules will remain in place for jobs involving work with vulnerable populations, as indicated by standard and enhanced DBS checks.
- If an individual reoffends during the rehabilitation period, they must disclose both the original and subsequent offences to employers for the longer rehabilitation period.
Employers' role in rehabilitating offenders
Employers play a pivotal role in the rehabilitation process. In fact, companies such as Marks & Spencer already offer targeted programmes to support those who face barriers to employment, including ex-offenders, in finding work.
With recruitment challenges intensifying across multiple sectors, an increasing number of employers are recognising the untapped potential within the ex-offender talent pool and widening the net when hiring. After all, prisons can teach a variety of industry level skills, as well as enable prisoners to achieve professional qualifications.
This shift in perspective not only contributes to the societal reintegration of ex-offenders but also proves to be a strategic and socially responsible approach for forward-thinking organisations. In addition to plugging skills gaps and helping to meet recruitment needs, employing ex-offenders can benefit businesses by reducing recruitment overheads, increasing the diversity of their workforce, and enhancing staff retention.
Indeed, while the idea of employing individuals with criminal convictions can make employers nervous, research has shown that:
- Over 90% of businesses employing ex-offenders deemed them reliable, good at their job, punctual and trustworthy.
- 92% of employers believe diverse recruitment has enhanced their reputation, helping them win new contracts.
- 81% of people think that businesses employing ex-offenders are making a positive contribution to society.
- Anecdotally, ex-offenders place higher value on having a job because of desire to stay out of prison, often resulting in higher levels of loyalty and retention as well as fewer absences.
However, despite these potential benefits, Working Chance, an employment charity for women with convictions, notes that while some employers are becoming more open-minded, disclosing an unspent criminal conviction remains a significant barrier to employment. In fact, according to its research, 30% of hiring managers would automatically exclude a candidate if they disclosed a conviction, irrespective of the severity of the offence. This might explain why just 17% of ex-offenders manage to get a job within a year of release.
While concerns are understandable, there are practical ways to minimise risk and improve your chances of a successful hire – see below for some top tips.
What can and should employers take into account when considering employing an ex-offender?
In some sectors, such as education and the financial services industry, there may be restrictions on employing people who have a criminal record or who are on any barred list.
However, assuming there is no industry guidance or sector-specific regulation, employers should use their own judgement when considering someone’s unspent criminal history.
Only unspent convictions – that is, any criminal conviction that a person is still in the rehabilitation period for, or which will stay on their criminal record – should be taken into account. This would show up on a DBS check if this is carried out. It’s important to remember that employers must not refuse to employ someone, or dismiss them, due to them having a spent conviction.
Nacro, the crime prevention charity, recommends that it’s good practice for employers to take into account to the following factors when considering employing someone with a criminal history:
- Relevance: Is the conviction relevant to the position in question?
- Seriousness: How serious is the offence?
- Time: How long ago was the offence committed?
- Patterns of offending: Are they a repeat offender?
- Change: Has the applicant’s situation changed since the offending behaviour?
- Circumstance: What were the circumstances surrounding the offence? Has the individual offered an explanation?
Top tips when employing ex-offenders
Carry out a risk assessment. Before making any hiring decisions, conduct a comprehensive risk assessment tailored to your business and the specific role. Evaluate potential risks and determine appropriate measures to mitigate them effectively.
Ensure a robust recruitment process. A rigorous recruitment process is vital when hiring ex-offenders as it helps mitigate potential risks by thoroughly evaluating their background. Through meticulous checks, including reference checks, organisations can make informed decisions.
Leverage probationary periods. Clearly outline and enforce probationary periods in the employment contracts of ex-offender hires and use this structured timeframe to assess the employee’s suitability for the role. Be vigilant for any emerging problems while also using this as an opportunity to offer support and mentorship. By addressing any challenges early on, you can contribute to the successful integration of ex-offenders into the workplace.
Consider the relevance of dismissal reasons. Keep in mind that while you can dismiss an ex-offender, or any employee for that matter, during their probation for reasons such as poor performance, bad attitude, or persistent lateness or absence, if there’s an underlying problem such as disability, dismissal will be riskier, so always seek advice.
Always exercise caution where the conviction is spent and the employee has qualifying service. It’s not uncommon for employers to become aware of spent convictions through the grapevine and to want to take steps to investigate this. Sometimes, it can cause an employer to doubt their trust in the employee. Due to the protection afforded to employees once a conviction is spent, which will occur at a far earlier time going forward, employers need to be alive to the risks in how they approach any acquired knowledge of such convictions and seek specific advice.
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Need expert advice?
At WorkNest, we specialise in providing expert advice to employers to help them navigate the intricacies of employment law and stay compliant as the law changes.
Our team is well-versed in the implications of the Rehabilitation of Offenders Act 1974 and can guide you through the practicalities of employing individuals with criminal convictions, especially in light of these recent reforms. Our goal is to help you understand your obligations, make informed decisions, and ultimately steer clear of potential pitfalls in your employment practices.
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