Will a job applicant have any redress if an employer refuses employment on the basis of a spent conviction?
Subject to certain exceptions, once a criminal conviction is spent, it does not have to be disclosed by an individual on a job application form, even if the form specifically asks for details of previous criminal convictions. Likewise, it does not have to be disclosed during questioning at interview. This is because, once a conviction is spent, the individual is to be treated for all purposes in law as a person who has not committed or been convicted of the offence in question. The length of time that must elapse before a conviction becomes spent depends on the nature of the sentence imposed. Some convictions are never spent.
Section 4(3)(b) of the Rehabilitation of Offenders Act 1974, states that a spent conviction (or a failure to disclose one) is not a proper ground for excluding a person from any office, profession, occupation or employment or for prejudicing him or her in any way in any occupation or employment, unless the individual falls with an excepted category. However, it is not clear from the legislation what remedy is intended to be available to an individual who discloses a spent conviction to a prospective employer and is not offered the job as a result. There is no specific employment law remedy available. The only possibility might lie in an action against the employer in the civil courts for breach of statutory duty, but there is no case law authority to support this proposition. The real protection lies where an employee who has already been employed for at least two years is dismissed because the employer subsequently discovers that he or she has a spent conviction. In these circumstances the employee will be able to claim unfair dismissal.
Some occupations and professions fall within excepted categories, and employees or prospective employees in these categories are always obliged to disclose spent convictions. The excepted professions include doctors, nurses, midwives, solicitors, barristers, police officers, accountants, teachers and those working with vulnerable adults.