Revealing a criminal conviction: ask the expert

In October last year I applied for a part-time vacancy. My interview went well and I received a phone call to say that they would like to offer me the position going. I asked if I could come in and have a chat. When I told them I had a criminal record they said they would speak to their HR department and get back to me. I was given the run around for about a month or so and finally gave up. Where do I stand with them and if this happens again?

A prospective employer may want to check whether prospective employees have criminal records for a number of reasons, including where: –

– the position is one which, by law, requires the employer to make such an enquiry (for example, work with children or vulnerable adults);

– the nature of the work is such that making enquiries is desirable, though not mandatory (for example, someone working in a regulated position in the financial services sector);

– the employer simply wants to know about the person’s criminal record history as part of assessing their suitability. For example, an employer may not wish to employ anyone who has committed offences of dishonesty or violence.

However, the law places limits on what information an employer can seek about a person’s criminal record history and the reliance which can be placed upon it. Broadly speaking, while an employer is permitted to seek and take account  information in (a) and (b) above, there are a number of restrictions in situations covered by (c) above, by virtue of the Rehabilitation of Offenders Act 1974.

This Act provides that, subject to certain exceptions, those convicted of a criminal offence who have not reoffended during a specified period from the date of conviction, will be deemed rehabilitated and their convictions “spent”. The period of time that must elapse before a conviction is deemed to be spent depends upon the sentence imposed, although prison sentences of more than 2 ½ years never become spent.

Most spent convictions do not need to be disclosed to a current or prospective employer, even where there is a direct request for that information or a contractual requirement to disclose. Unless an exception applies, the Act provides that a person questioned should not be prejudiced for failing to acknowledge or disclose a spent conviction. Examples of prejudice would include refusal to hire or offer promotion. However, it is not clear what remedy there would be for refusing to engage that person – possibly it would be an action for breach of statutory duty.

I am not aware as to what position you were applying for and thus, whether or not an exception would apply to you. I am also not aware as to whether your conviction is spent. My advice is that, if your conviction is spent and an exception does not apply to you, then at any future interview, you do not need to reveal details of any spent conviction. If your conviction is not yet spent, there is nothing you can do regarding your recent failure to receive a job offer.

At a future interview, you may decide not to volunteer any information about your criminal record, particularly if it is already “spent”.

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