Does Your Employee Need To Tell You If They Have Committed A Criminal Offence?

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Does Your Employee Need To Tell You If They Have Committed A Criminal Offence?

Author: Laura Spence

Key Contact: Claire Knowles

Employers have the right to ask employees (or potential) employees whether they have any disclosable criminal convictions. That individual is legally obliged to disclose any convictions that aren’t spent. Failure to disclose may result in dismissal and/or further criminal convictions.

As of 28th October 2023, criminal convictions will become spent sooner, meaning individuals are subject to a shorter period in which they must declare criminal convictions to their employer.

Section 193 of the Police, Crime, Sentencing and Courts Act 2022 makes the following changes:

Type of ConvictionPrevious length of time required to discloseNew length of time required to disclose
Custodial sentence of 4 years+Never spent7 years (but certain offences, classified as “serious violence, sexual and terrorism offences”) are never spent.
Custodial sentence 2 ½ years-4 years7 years4 years
Custodial sentence of 1-2 ½ years4 years4 years
Custodial sentence of 6 months- 1 year4 years1 year
Custodial sentence of up to 6 months2 years1 year
Community OrderOne year beginning with the last day on which the order had affectThe last day on which the order had effect

Why is this happening?

This change is set to bring many jobseekers a greater chance at securing employment, and rebuilding themselves. According to the Government’s press release, it is suggested that over 120,000 former offenders will find it easier to get work and move away from crime now. Under the previous rules, some offenders were obliged to declare crimes they committed decades ago for the rest of their lives, making it very difficult to secure and maintain employment.

Increasing the number of ex-offenders into jobs has formed a key part of the Government’s work to reduce reoffending, which costs the taxpayer circa £18 billion each year.

What employers need to do?

Organisations should take the time to update their systems and policies to reflect the new time periods. Dismissing employees for not disclosing spent convictions may constitute unfair dismissal, so employers should carefully think about what action to take if criminal convictions come to light.  

Employers should also note that no conviction needs to be disclosed unless the specific question is asked. We therefore, suggest including this in the recruitment process and ensuring a policy exists which puts an ongoing duty of disclosure on employees. If suspicions arise, employers should directly ask the employee.

Rest assured, offenders that have committed very serious crimes, such as serious sexual offences, violence and terrorist offences are excluded from these changes. Stricter disclosure rules will also continue to apply for those working with vulnerable people and children through DBS checks.  

If you have any queries or would like to discuss this more, please get in touch with our Employment Team.

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