The Rehabilitation of Offenders Act 1974 provides that anyone who has been convicted of a criminal offence and who is not convicted of a further indictable offence during a specified period (the “rehabilitation period”) becomes a “rehabilitated person” and his/her conviction becomes spent. This means that the conviction does not have to be declared for most purposes, such as applying for a job.
The period of time that must elapse before a conviction becomes a spent conviction varies, according to the length and nature of the sentence and the age of the offender. For example, a community order becomes spent after one year, while a custodial or prison sentence of a maximum of 48 months becomes spent after seven years. The length of time for a conviction to become spent for someone under 18 is generally half that of an adult. A custodial or prison sentence of more than 48 months (four years) can never become spent.
Under the Act, a spent conviction, or failure to disclose a spent conviction or any circumstances connected with it, is not a proper ground for dismissing or excluding a person from any office, profession, occupation or employment or for prejudicing a person in any way in any occupation or employment.
A spent conviction need not be disclosed when a person is asked about his/her previous record and a rehabilitated person cannot be prejudiced if the spent conviction later comes to light.
There are a number of job roles that are excepted from the ROA. These are listed in the ROA Exceptions Orders that are published alongside the Act. The job roles and their definitions are wide ranging and the complete list can be found online. They range from those working with children and vulnerable adults, Crown Officers, doctors, nurses, pharmacists, veterinarians, accountants and many more. A person applying for any of these job roles must disclose to an employer or prospective employer previous convictions/criminal records no matter how long ago they were served.
The following NHSCFA roles are also included on the Exceptions Order:
‘Any employment or other work in England or Wales concerned with—
(a) the investigation of fraud, corruption or other unlawful activity affecting the national health service […]’
Under legislation, employers must not discriminate in their recruitment processes. Therefore, organisations registered with the Disclosure and Barring Service (DBS) are required to have a written policy on the recruitment of ex-offenders, stating that they do not discriminate because of a conviction or other information revealed. A sample policy document can be found at https://www.gov.uk/
There are several acts of Parliament employers must have regard for: The Rehabilitation of Offenders Act (ROA) 1974, the Police Act 1997 and the Equality Act 2010. The Exceptions Order linked to the ROA includes a list of the professional categories excepted from the ROA. All excepted categories have a reference number, which changes over time; as of July 2014, the one related to health professions is number 21. The full list can be found at https://www.gov.uk/
For NHS provider organisations, there is the further requirement of compliance with the Care Quality Commission’s Essential Standards of Quality and Safety, and specifically outcome 12 which relates to robust recruitment practices. https://www.cqc.org.uk/guidance-providers/regulations-enforcement/regulations-service-providers-managers
There are three different levels of DBS checks linked to specific roles, activities and positions, information about which is available at https://www.gov.uk/dbs-check-requests-guidance-for-employers. All checks must comply with the Data Protection Act 1998.
Employers should ensure that their organisations are registered with the DBS to be able to carry out a check on a candidate. The level of check required, if any check is required at all, will depend on the role and position which the candidate has been selected for.
Roles that include contact and interaction with vulnerable people, children and the elderly entail a more thorough check (the latter falls within the category of ‘regulated activity’).
Employers are also encouraged to consult the supporting documentation available from DBS in light of several changes that have been introduced in the last few years, including filtering of some old and/or minor convictions and the ‘portability’ of a DBS check.