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

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 are unspent if they are asked. Failure to disclose may result in dismissal and/or further criminal convictions.

As of 28 October 2023, criminal convictions can 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:

The current rehabilitation periods apply from the end of the sentence, including any licence period.

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 was suggested that over 120,000 former offenders would find it easier to get work and move away from crime.

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 do 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, subject to the exceptions that apply to certain roles and DBS checks. 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.

It is important to note that offenders who have committed very serious crimes, such as serious sexual offences, violence and terrorist offences, are excluded from these changes where the relevant sentence is more than four years. Stricter disclosure rules will also continue to apply for those working with vulnerable people and children through DBS checks.