Employers do not have an unlimited right to information about the criminal records of job applicants. Instead, the law aims to strike a balance between the successful rehabilitation of offenders and recognition of the need for disclosure of criminal offences in some circumstances.

The Rehabilitation of Offenders Act 1974 provides that some convictions become spent if the individual does not re-offend during a specified period from the date their sentence is completed. Importantly, individuals with spent convictions can say they have a clean criminal record. Even if a spent conviction is voluntarily disclosed, it must be disregarded for the purposes of the recruitment process.

The Act identifies a number of excepted occupations where employers may be permitted, or even required, to check a person’s official criminal record rather than relying on a job applicant voluntarily disclosing it. Roles such as pharmacists fall within this exception.

If the exception applies, job applicants can be asked to provide information about spent convictions for the purposes of assessing their suitability for that post. Employers recruiting for excepted posts are also entitled to ask for Disclosure and Barring Service checks on such applicants. Employers recruiting for an excepted post can take criminal records, including spent convictions, into account and, depending on the role, it might even be unlawful to employ somebody who has certain information on their criminal record.

For roles not covered by a lawful exception, knee-jerk reactions should be avoided if you discover that a prospective employee has a criminal record. In general, you are expected to use your judgement and consider factors such as whether the conviction is relevant to the job, how serious the offence was and whether the individual’s circumstances have changed since the offence. Employers should steer away from having a blanket ban on employing ex-offenders and should instead assess the risk with regard to their business and the specific role.