Disclosures, law and practice

Transcription

1 Nacro good practice handbook Disclosures, law and practice A handbook for shop stewards, trade union officials, employment lawyers and others This handbook will be invaluable for anyone supporting people subject to criminal record disclosures

2 Disclosures, law and practice Nacro Clapham Road London SW9 0PU Telephone Fax ISBN Nacro is a registered charity no Nacro 2006 If you have particular needs which make it difficult for you to read this, contact and we will try to find a more suitable format Nacro welcomes a wide circulation of its ideas and information. However, all reproduction, storage and transmission must comply with that allowed under the Copyright, Designs and Patents Act 1988, namely for purposes of criticism or review, research or private study, or have the prior permission in writing of the publishers. Photos Cover left, Frank Manning Photographers, manningphotographers@btclick.com; cover right, Mark Harvey, mark@id8photography.co.uk; cover second and third from left, Please note that the form on the front cover is a mock up Nacro is very grateful to everyone who appears in the photos. Please note, it should not be assumed that any individuals depicted have any association with the stories or activities described in the text.

3 Disclosures, law and practice Contents Foreword page 2 Introduction page 3 1 The use and misuse of Disclosures page 5 2 Disclosure Code of Practice page 8 3 Assessing the relevance of convictions page 11 4 Unfair dismissal page 15 5 Wrongful dismissal page 16 6 Checklist page 17 Appendices A B C A Guide to the Rehabilitation of Offenders Act 1974 page 18 Schedule 1 and 2 of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 as amended (abridged version) page 22 Code of Practice for registered persons and other recipients of Disclosure information page 27 D Explanatory Guide for registered persons and other recipients of Disclosure information (abridged version) page 31 E F Section 36 of the Criminal Justice and Court Services Act 2000 page 40 Employing people with criminal records: model agreement between employer and trade union page 42 About Nacro s helpline page 44 1

4 Foreword 2 The introduction of Disclosure criminal record checks in March 2002 has undoubtedly served to discourage people who might harm children or vulnerable adults from seeking work with them. However, such benefits aside, Disclosures also discourage other people with criminal records from applying for work with vulnerable people, even though they represent no risk whatsoever. People are discouraged because they are ashamed or embarrassed about their records, even when they are very minor, and because they fear that they will not be treated fairly. Their fears are justified for many face very real discrimination: people are routinely refused employment or are suspended and dismissed on the basis of wholly irrelevant convictions or cautions. Quite apart from the consequences this has for the individuals themselves, there are social and economic costs for employers too. Not only do they often end up employing less able, experienced or qualified people, they sometimes find it difficult to fill their vacancies. This is especially the case in health and social care, where it is difficult to recruit because pay is low. However, it is not only people with convictions or cautions who face discrimination. As this handbook makes clear, many people who have had unsubstantiated allegations made against them face exclusion from the labour market. Some of these people are undoubtedly innocent. This handbook draws on the experience of Nacro s Resettlement Plus Helpline, which deals with thousands of Disclosure enquiries a year, including many from people who have lost their jobs because of checks. The handbook provides guidance on the law and good practice for those representing affected parties. It also provides a model agreement between trade unions and employers in the hope that employers and trade union officials and stewards will come together to find more effective ways of dealing with the issues that arise from the use of Disclosures. By working together on a common agenda to reduce the discrimination and social exclusion that arises from the misuse of Disclosures, we can all help to create a healthy, dynamic and diverse workplace that benefits everyone those with past records, employers, and customers and service users too. Sarah Veale Head, Equality and Employment Rights Department Trades Union Congress

5 Disclosures, law and practice Introduction Although the number of people affected cannot be quantified there are no reliable statistics or studies into the issue the introduction of Standard and Enhanced Disclosure checks in 2002 has undoubtedly led to a significant increase in people being unfairly refused employment or suspended and dismissed on the basis of their criminal records. Those who are affected usually suffer in silence. They are often too upset, embarrassed or ashamed to stand up for themselves. They are often unaware of how badly they have been treated, not being familiar with the law or the Disclosure Code of Practice governing their employment. And usually there are no advocates available who feel qualified to intervene on their behalf. A few of those affected will contact Nacro. Upon investigating their cases, Nacro s helpline staff have found clear evidence of discrimination. They have found that many employers routinely misuse their access to criminal records by: running checks on posts that are not exempt from the Rehabilitation of Offenders Act 1974 (see appendices A and B) and thus not eligible for Disclosure checks running Enhanced Disclosure checks on posts that are only eligible for Standard Disclosure checks ignoring the Disclosure Code of Practice (see appendix C), designed to ensure that exoffenders are treated fairly refusing to employ people or suspending and dismissing them on the basis of very old, minor or irrelevant convictions or cautions This handbook draws on the expertise of Nacro s Resettlement Plus Helpline, which deals with around 14,500 Disclosure enquiries each year. (See page 44 for more information about the helpline.) The handbook sets out the law and good practice in relation to Disclosures. It explains what employers should and should not do in relation to ex-offenders, and sets out the grounds on which decisions to refuse employment or suspend and dismiss individuals might be challenged. It is written for shop stewards, trade union officials, employment lawyers and others helping people subject to Disclosure checks. Individuals who have been refused employment or suspended and/or dismissed should also find this useful. Shop stewards and trade 3

6 Introduction union officials might also find this information useful more generally in helping employers to adopt fair recruitment policies and practices in relation to Disclosure applications. Towards this end, a model agreement between employer and trade union on employing people with a criminal record is provided (appendix F). The guidance begins by describing the use and misuse of Disclosures (part 1) and the grounds on which decisions might be challenged, based on the Disclosure Code of Practice (parts 2 and 3). It then sets out the law on unfair and wrongful dismissal (parts 4 and 5) as it applies to Disclosures. A checklist is provided (part 6) setting out the key questions that need to be asked when applying this guidance in practice. Although the guidance has been written with Disclosures in mind, some of the guidance will be applicable in cases where ex-offenders have been refused employment or suspended and dismissed in the absence of a Disclosure check. 4

7 Disclosures, law and practice Part 1 The use and misuse of Disclosures There are currently two forms of Disclosure check introduced under Part V of the Police Act 1997: Standard and Enhanced Disclosures. Both Standard and Enhanced Disclosures show spent and unspent convictions, as well as cautions, reprimands and final warnings, held on the Police National Computer. A third check, the Basic Disclosure, which will only show unspent convictions, may be introduced in England and Wales at some point in the future although there are currently no plans for its introduction. Defining exceptions Standard and Enhanced Disclosure checks should only be carried out for positions exempt from the Rehabilitation of Offenders Act. Broadly, these positions include: those whose duties involve regular contact with children and vulnerable adults certain professions such as health, accountancy, and the law senior managers, controllers, directors, etc in financial services appointments where national security might be at risk In theory, for a position to be exempt from the Rehabilitation of Offenders Act, it must be on the Exceptions Order maintained by the Home Office. In practice, many posts which are currently subject to Disclosure checks are not on the Order. Therefore, in running Standard and Enhanced Disclosure checks on such posts, employers are in breach of the Police Act, the Rehabilitation of Offenders Act and of the Data Protection Act 1998, which requires that data be processed fairly and lawfully. The Exceptions Order defines work with children as any work which is (a) work in a regulated position; or (b) work in a further education institution where the normal duties of that work involve regular contact with persons aged under 18. The meaning of regulated position can be found in section 36 of the Criminal Justice and Court Services Act 2000 (see appendix E). Work with vulnerable adults is defined as any employment or other work which is concerned with the provision of care services to vulnerable adults and which is of such a kind as to enable the holder of that employment or the person engaged in that work to have access to vulnerable adults in receipt of such services in the course of his normal duties. A vulnerable adult is defined as a 5

8 Part 1 The use and misuse of Disclosures 6 person aged 18 or over who has a condition of the following type: (i) a substantial learning or physical disability; (ii) a physical or mental illness or mental disorder, chronic or otherwise, including an addiction to alcohol or drugs; or (iii) a significant reduction in physical or mental capacity. This is a strict definition for a vulnerable adult. Adults are not vulnerable simply because they are elderly, for instance. The definitions are particularly important because many employers are running checks on posts that do not fall within those definitions. For example, Nacro has found local authorities that have run checks on people employed as refuse collectors, car park attendants, dog wardens, quantity surveyors and estate managers on the basis that by their very occupation they may come into contact with vulnerable people, however occasionally. Other posts that have been subject to Disclosure checks include customer service advisers, bank clerks, train drivers, firemen, and bus ticket inspectors. Too often employers equate jobs where employees go into people s homes or otherwise have any contact with the public as posts that are exempt from the Rehabilitation of Offenders Act, simply because the public must by definition include children and vulnerable adults. Taken to its logical conclusion, such a definition would include almost every occupation in the land because most people come into contact with the public at some point during the course of their employment. Such a wide definition is not what legislators intended. The widespread misuse of the Exceptions Order means that this is an issue which will crop up on a regular basis, and one that practitioners challenging discrimination in Disclosure cases ought to be familiar with. Differentiating Standard and Enhanced There are two principal differences between Standard and Enhanced Disclosures. First, while Standard Disclosures cover positions involving general work with young people and vulnerable adults, Enhanced Disclosures should, according to sections 115(3) and (4) of the Police Act, be limited to positions involving regular caring for, training, supervising or being in sole charge of them. Second, in addition to showing spent and unspent convictions, as well as cautions, reprimands and final warnings held on the Police National Computer, Enhanced Disclosure certificates also show other relevant information from local police records that the police believe is relevant in connection with a particular post. There are two critical issues here. First, it is clear that Enhanced

9 Disclosures, law and practice Disclosures are being requested routinely for positions that should strictly be covered by Standard Disclosures. When the Criminal Records Bureau (CRB) was first established, it believed that a minority of checks would be at Enhanced level. In 2004, 89% were at Enhanced level and only 11% were at Standard. The discrepancy has occurred not because the CRB got its sums wrong, but because the Disclosure service is being misused. On its own, the overuse of Enhanced Disclosures would not be an issue if it were not for the large number of cases where unproven and disputed information has appeared on such Disclosures. The Nacro helpline has dealt with a number of people who have been refused employment or suspended and dismissed on the basis of allegations appearing on Enhanced Disclosures allegations that they have not been able to challenge effectively when they have complained to the CRB and the police, invariably because the police are unwilling to re-examine their cases. In such situations, it may be worth the individual pursuing an official complaint against the police, especially if the information is not relevant, or from a long time ago. If there is no satisfactory outcome, it may be possible to pursue the complaint with the Independent Police Complaints Commission or the Information Commissioner s Office. The widespread misuse of Enhanced Disclosures means that this is an issue that will crop up occasionally, and one that practitioners challenging discrimination in Disclosure cases may be able to use as part of a wider case on behalf of an individual. If an employer does carry out an Enhanced Disclosure where they ought to have done a Standard Disclosure, then they are breaching both the first and the third principles of the Data Protection Act relating to the fair and lawful, adequate, relevant and not excessive processing of data. Complaints about breaches of the Data Protection Act can be referred to the Information Commissioner s Office, which can issue an enforcement notice to the employer, requiring them to refrain from certain practices. 7

10 Part 2 Disclosure Code of Practice 8 The Disclosure Code of Practice was introduced under the same legislation (Part V of the Police Act 1997) that saw the creation of the CRB. The Code is intended to ensure and to provide assurance to those applying for Standard and Enhanced Disclosures that the information released will be used fairly. The Code also seeks to ensure that sensitive personal information is handled and stored appropriately and is kept for only as long as necessary. The Code is routinely breached by employers. Judged by the calls to the Nacro helpline, managers and HR personnel conducting Disclosure checks tend not to be aware of the existence of the Code and are not making it known to applicants. Failure to comply with the Code, and the accompanying Explanatory Guide (see appendix D), lies behind much of the discrimination that has resulted from the introduction of Disclosures. However, both documents provide much useful information on which a case against suspension or dismissal can be made. There are a number of provisions within the Code on which to build a case, but the key provisions for our purposes concern the fair use of information. Written policy Under the Code, in the interests of the proper use of Disclosure information and to reassure applicants, employers shall have a written policy on the recruitment of ex-offenders. This policy should be given to all applicants for positions where a Disclosure will be requested. The issue of a written policy is important. A written policy would, among other things, set out an employer s likely attitude to receiving an application from an exoffender. The policy might state, for instance, that it would consider applications from ex-offenders for all positions, but those convicted of serious violent, sexual or drugs offences would almost certainly be excluded, irrespective of how old the convictions are. Such a statement might come as a disappointment to anyone with a serious violent, sexual or drugs offence, but at least they would know where they stood. A written policy would provide an indication of the likely success of an application, and provide a basis for a potential applicant to decide whether to apply or not. The absence of a policy does the opposite and can leave ex-offenders at a serious disadvantage if they apply for something they have no chance of getting.

11 Disclosures, law and practice Application forms The Code requires employers to ensure that application forms for positions where Disclosures will be requested in the event of a successful application contain a statement to such an effect. Again, this is important. In too many instances, ex-offenders have applied for positions without seeing such a statement, have secured those positions and have resigned from their current positions, only unexpectedly to be handed a Disclosure application form on starting the new job. This practice is unacceptable but common. Where it occurs, it should form part of your case on behalf of the affected party. Blanket bans The Code requires that employers shall include in application forms or accompanying material a statement to the effect that a criminal record will not necessarily be a bar to obtaining a position. Again, many application forms or accompanying material contain no such statement, and in practice some employers will not knowingly employ ex-offenders. In odd instances, employers have policy statements that actually make it explicit that ex-offenders are barred from any employment with them. Having signed up to the Code when they registered with the CRB, such statements from employers are unacceptable and evidence of this should be used, where appropriate, in making a case on behalf of affected parties. Where the post in question is not exempt from the Rehabilitation of Offenders Act, your case will be even stronger, representing as it does a breach of the law. Discussion The Code requires that employers shall discuss any matters revealed on a Disclosure certificate with the person seeking the position before withdrawing an offer of employment. Again, this provision is routinely ignored. Employees are often summarily dismissed, with no opportunity to challenge the accuracy of the information on the Disclosure or, if the information is correct, to put it into context. Employers who summarily dismiss an individual in this way are particularly likely to have failed at the outset to have warned the employee that the position was subject to a Disclosure check or indeed to have asked about criminal records at all. Such attitudes are clearly unacceptable and should be challenged. Making the Code of Practice available The Code requires that employers shall make every subject of a Disclosure aware of the existence of the Code, and make a copy 9

12 Part 2 Disclosure Code of Practice available on request. This provision is routinely ignored, which means that applicants are left unaware of their rights and the responsibilities placed on employers. It is a failing on the part of employers that should be used as part of the affected party s case. Discrimination Finally, and importantly, the Code requires that recipients of Disclosure information shall not discriminate against the subject of Disclosure information on the basis of conviction or other details revealed. They should, according to the Explanatory Guide, consider the following: whether the conviction or other matter revealed is relevant to the position in question the seriousness of any offence or other matter revealed the length of time since the offence or other matter revealed whether the applicant has a pattern of offending behaviour or other relevant matters whether the applicant s circumstances have changed since the offending behaviour or other relevant matters, and the circumstances surrounding the offence and the explanation(s) offered by the convicted person This is the critical part of the Code, and the information provided here could go a long way towards supporting any case for reinstatement. The issues raised are examined in detail in the next section. Checklist Code of Practice Does the employer have a written policy on the recruitment of exoffenders so that a copy can be given to all applicants for positions where a Disclosure will be requested? Does the application form for positions where Disclosures will be requested contain a statement that a Disclosure will be requested in the event of a successful application? Does the application form or accompanying material contain a statement to the effect that a criminal record will not necessarily be a bar to obtaining a position? Did the employer discuss any matters revealed in Disclosure information with the applicant? Did the employer make the applicant aware of the existence of the Code of Practice and make a copy available on request? 10

13 Disclosures, law and practice Part 3 Assessing the relevance of convictions Relevance The Explanatory Guide accompanying the Code requires employers to consider whether the conviction or other matter revealed is relevant to the position in question. The relevant categories of offences in relation to the protection of children are generally serious violent, sexual and drugs offences. Younger children may be at more risk of sexual abuse; older children from drugs. Offences relating to dishonesty are not so relevant to positions working with children. Driving or drinking offences would be relevant in situations involving the transporting of children and vulnerable adults. For vulnerable adults, the relevant categories are usually violent and sexual offences. Drugs offences may be less relevant as vulnerable old people, for instance, are not generally susceptible to illegal drug use. However, offences of dishonesty such as fraud may be relevant in relation to them because old people may have money or valuables. However, even here one should distinguish between offences. An offence of shoplifting, for instance, might not be a particular cause for concern, though an offence of theft from an individual very likely would. Beyond these offences, there are a wide variety of offences that have little relevance, such as public order offences, and yet these are often taken into consideration by employers. Although it ought to be obvious to employers, you may need to argue that such offences are not relevant and why. Employers who take a broad-brush approach to relevance are likely to put vulnerable people in their charge at more risk simply by not focusing on real risk. Seriousness The Guide requires employers to consider the seriousness of any offence or other matter revealed. This is important because all offence categories cover a very wide range of offences that vary in terms of seriousness. A sexual offence, for instance, covers everything from consensual homosexual acts and young people sleeping with their under-aged girlfriends to indecent assault and rape. Violence covers everything from, commonly, slaps and smacks (assault) to, less commonly, 11

14 Part 3 Assessing the relevance of convictions grievous bodily harm and murder. Drug offences cover everything from possession of small amounts of cannabis for personal use to possession of class A drugs with intent to supply. Burglary covers everything from taking goods from shop storerooms to entering the homes of elderly people, leaving them in fear. If the offence sounds more serious on the Disclosure than it was in reality and often it does you should explain this as part of the affected party s case. There will only be a few cases where the offence, though minor in itself, will cause concern. The theft of women s underwear, for instance, which falls into the category of property crime, might suggest that the offender has deviant sexual interests. Other examples of behaviour that might cause concern in this regard include threats to others, hatebased and predatory behaviour. The sentence given for a conviction can also indicate how serious the offence was. The offence label may sound serious actual bodily harm for example but if the individual was only given a conditional discharge, this would indicate that it was a minor incident. If an individual was given a caution, absolute discharge or bind-over, this would also indicate that the incident was minor. If other punishments were given, there will be information to indicate seriousness. For example, if a fine was given, how much was the fine? If it was probation, community service or a custodial sentence, how long was the order or sentence? Offence circumstances The Guide asks employers to consider the circumstances surrounding the offence and the explanation(s) offered by the convicted person. An explanation of the circumstances surrounding an offence can often provide reassurance. For instance, a person in fear who in defence ends up assaulting someone who is threatening them is not as culpable as an individual who causes serious injury with intent. Age of offences The Guide requires employers to consider the length of time since the offence or other matter revealed. Many of the offences on Disclosures are very old, going back to when the person was growing up. They are not relevant in most instances, as the people concerned will have put their past behind them. This is reflected in annual crime statistics, which show that the majority of offenders have short criminal careers of less than a year in length (around 55% of males 12

15 Disclosures, law and practice and 80% of females). Most offenders have only been convicted once. The Government recognises that people can and do put their offending behind them, and this recognition is embodied in the Rehabilitation of Offenders Act While the Act does not apply to positions subject to Disclosures, it does provide a guide to the relevance of convictions in terms of their age. Under the Act, most convictions become spent after five years. (For more information about the Act, see appendix A.) In fact, people who do not offend for two years after being convicted are generally no more likely to offend than those who have never offended. This is reinforced by prison statistics which show that approximately 60% of discharged prisoners are reconvicted within two years, but only 5% more are reconvicted within four years. The report of the Home Office review of the Rehabilitation of Offenders Act shows that the rate of increase in reoffending is at its highest in the two years following conviction in the case of noncustodial sentences, and within two years of release in the case of custodial sentences. 1 After this period there is a rapid falling off in conviction rates. This is an important fact that you should ask employers to take into account when making a case on behalf of an injured party. Pattern of offending The Guide also asks employers to consider whether the applicant has a pattern of offending behaviour or other relevant matters. This point follows on from the last. People who have a pattern of offending right up to the present date have clearly not put their past behind them. Those people with gambling, drink or drugs-related convictions in particular may remain a risk unless there is evidence of a clear break in the pattern of their offending. Nevertheless, most people, including repeat offenders, put their offending behind them at some stage, often as a result of changed circumstances, and become law-abiding citizens. There will often be clear evidence of this on which you can make a case. Changed circumstances The Guide asks employers to consider whether the applicant s circumstances have changed since the offending behaviour or other relevant matters. This is commonly the case. For instance, those convicted when young, perhaps as juveniles, often do not reoffend once they have family or mortgage responsibilities because they have too much to lose by getting into trouble. 13

16 Part 3 Assessing the relevance of convictions Checklist Assessing the relevance of convictions Is the conviction or other matter revealed in the Disclosure relevant to the position in question? How serious was the offence or other matter revealed in the Disclosure? Were there mitigating circumstances surrounding the offence and what explanations for it are offered by the applicant? How long is it since the offence or other matter revealed in the Disclosure? Does the applicant have a pattern of offending behaviour which suggests that they are a continuing risk? Have the applicant s circumstances changed since their offending or other matter revealed in the Disclosure? Reference 1 Home Office (2002), Breaking the Circle: A report of the review of the Rehabilitation of Offenders Act, Home Office: London 14

17 Disclosures, law and practice Part 4 Unfair dismissal Most people dismissed from their jobs following a Disclosure check will not be able to claim unfair dismissal because they will not have been in employment long enough. In order to claim unfair dismissal, people need to have been continuously employed for a year or more. It is automatically unfair to dismiss someone for failing to disclose a spent conviction where a position is not excepted from the Rehabilitation of Offenders Act, but the one year continuous employment rule must apply in order to make a claim. Once it has been shown that the applicant is qualified to make a claim that an unfair dismissal has taken place, and that the employer has put forward a potentially fair reason for the dismissal, it is necessary to consider the fairness of the dismissal. The employer must use a fair procedure in deciding to dismiss the employee. An employment tribunal would consider, among other things: whether the employee was given a fair hearing; the evidence used at the hearing; and the employee s work record overall performance, work and behaviour. Often in Disclosure cases, employees are not given a fair hearing in that employers do not accept full responsibility for their own flawed recruitment procedures or fully recognise the contribution the employee has made in the workplace. Employees who have been dismissed may request a written statement of reasons for the dismissal, which the employer must provide within 14 days. Public funding (legal aid) is only available at Employment Appeal Tribunal stage, not at the original employment tribunal. There may be other ways of finding funding at the tribunal stage, notably no win no fee solicitor arrangements. 15

18 Part 5 Wrongful dismissal Employees who are dismissed following a Disclosure check may have a stronger claim for wrongful dismissal, given that this is not subject to the one-year rule. A wrongful dismissal is an action for damages to compensate former employees for losses suffered for the wrongful termination of the employment contract. Wrongful dismissal is based on contract law, and is therefore dependent upon the employer breaking the employee s contract of employment. It usually relates to whether the correct contractual notice period has been given, and whether the reason for the dismissal is relevant. An employee will be wrongfully dismissed if they are dismissed with little or no notice. If there is no contract or the contract does not specify notice periods, then the statutory minimum notice periods apply. The statutory minimum notice period for someone continuously employed for between one month and two years is one week. Two weeks notice must be given to someone employed for two years, and one additional week for each further year of complete service, up to a maximum of 12 weeks. Compensation for wrongful dismissal is limited. Damages will normally only amount to money that the employee would have been entitled to had the contract been lawfully terminated, ie the contractual or the statutory minimum notice period. Compensation for damage to reputation may also be recoverable in limited circumstances. An employee can bring a claim for both unfair and wrongful dismissal, but any money received under one claim will cancel out the same amount received under the other claim. This is to stop the employee receiving double compensation. 16

19 Disclosures, law and practice Part 6 Checklist These are some of the key questions you might need to ask the affected party when deciding whether they have a case or not. Did you disclose your convictions when you applied for the job? If not, why not? Is the job exempt from the Rehabilitation of Offenders Act? Were you asked to disclose your convictions? Were you asked to disclose unspent convictions? If the employer carried out a Disclosure check, did the employer follow the Disclosure Code of Practice? Did the employer have a written policy on the recruitment of exoffenders, and did they give it to you so that you knew where you stood? Did the employer have a statement on the application form stating that a Disclosure will be requested, so that you knew where you stood? Did the application form or accompanying material have a statement to the effect that a criminal record will not necessarily be a bar to employment? When the employer received the Disclosure certificate, did they discuss the convictions with you before dismissing you? How serious is the offence or other matter revealed in the Disclosure? How long is it since the offence or other matter revealed in the Disclosure? Do you have a history of offending behaviour which suggests that you might be a continuing risk? Have your circumstances changed since the offending or other matter revealed in the Disclosure? Were there mitigating circumstances surrounding the offence? Is the conviction or other matter revealed in the Disclosure relevant to the position in question? How long had you been employed before your dismissal? Has the employer complied with their recruitment and disciplinary procedure, assuming they have one? 17

20 Appendix A A guide to the Rehabilitation of Offenders Act 1974 The Rehabilitation of Offenders Act 1974 enables criminal convictions to become spent or ignored after a rehabilitation period (see below). After this period, with certain exceptions (see appendix B), an exoffender is not normally obliged to mention their conviction when applying for a job, obtaining insurance or when involved in criminal or civil proceedings. Strictly, the Act is not relevant for the purposes of this guide, given that Standard and Enhanced Disclosures should only cover posts that are excepted from the Act. However, given that people are being refused employment or suspended and dismissed on the basis of jobs not excepted from the Act, the following information is relevant in their defence. Rehabilitation periods The length of the rehabilitation period depends on the sentence given not the offence committed. For a custodial sentence, the rehabilitation period is decided by the original sentence, not the time served. Custodial sentences of more than two-and-a-half years can never become spent. The Act is more likely to help people with few and/or minor convictions because further convictions usually extend rehabilitation periods. People with many convictions, especially serious convictions, may not benefit from the Act unless the convictions are very old. The following sentences become spent after fixed periods from the date of conviction: Sentence 1 Rehabilitation period Rehabilitation period People aged under 18 when convicted People aged 18 or over when convicted Prison sentences 2 of 6 months or less 3.5 years 7 years Prison sentences 2 of more than 6 months to 2.5 years 5 years 10 years Borstal (abolished in 1983) 7 years 7 years Detention centres (abolished in 1988) 3 years 3 years Fines 3 and community orders; compensation, probation, 4 community service, 5 combination, 6 action plan, curfew, 7 drug treatment and testing, 8 and reparation orders 2.5 years 5 years Absolute discharge 6 months 6 months 18

21 Disclosures, law and practice The Crime and Disorder Act 1998 introduced a new custodial sentence for young people with different rehabilitation periods: Sentence Rehabilitation period Rehabilitation period Detention and training order of 6 months or less People aged when convicted 1 year after the order expires People aged when convicted 3.5 years Detention and training order of more than 6 months 1 year after the order expires 5 years With some sentences the rehabilitation period varies: Sentence Rehabilitation period Probation, 9 supervision, care order, 10 conditional discharge and bind-over Secure training (abolished in 2000) and attendance centre order Hospital order (with or without a restriction order) Referral order 1 year or until the order expires (whichever is longer) 1 year after the order expires 5 years or 2 years after the order expires (whichever is longer) Once the order expires 1 The old deferred sentence was not a sentence that attracted a rehabilitation period. Rather, the rehabilitation period will be the one applicable to the sentence that is finally imposed. Cautions, reprimands and final warnings are also not sentences with rehabilitation periods. The Government intends at some point to include them within the Act and give them a rehabilitation period of nil, which means that they will become spent instantly. In the meantime, those people with only a caution on their criminal record can answer no if asked whether they have a criminal record, because this is usually understood to mean convictions. 2 Including suspended sentences, youth custody (abolished in 1988) and detention in a young offender institution (abolished for those under 18 years old in 2000 and for those aged in 2001). 3 Even if subsequently imprisoned for fine default. 4 For people convicted on or after 3 February Probation orders were replaced by community rehabilitation orders which were, in turn, replaced by generic community orders from April Community rehabilitation orders are still available for year olds. 5 Community service orders then changed to community punishment orders, now replaced by community orders. Community service orders are still available for year olds. 6 Combination orders then changed to community punishment and rehabilitation orders, now replaced by community orders. Combination orders are still available for year olds. 7 From April 2005, part of the community order and no longer available for people aged 18 or over. Still available for year olds. 8 From April 2005, part of the community order and no longer available for people aged 18 or over. Still available for year olds. 9 For people convicted before 3 February Care orders in criminal proceedings were abolished by the Children Act 1989 and effectively replaced by a supervision order with residence requirement. 19

22 Appendix A A guide to the Rehabilitation of Offenders Act Motoring offences The rehabilitation period for penalty points following an endorsement is five years. The period for a disqualification is the length of the disqualification. If a person is disqualified at the same time as receiving another penalty, such as a fine, the longer rehabilitation period applies. For example, if a motorist is banned from driving for seven years and fined which takes five years to become spent the rehabilitation period would be seven years, not five years. An endorsement cannot affect the rehabilitation period of a motoring conviction. For example, if a motorist is fined for drink driving and has their licence endorsed, the rehabilitation period would be five years (the length applying to the fine) rather than 11 years (the length of time under the Road Transport Act before a driver convicted of drink-driving is entitled to a clean driving licence). Multiple convictions The Act is complicated in cases where people have several convictions because of the way many subsequent convictions, but not all, extend the rehabilitation periods of earlier convictions. If a rehabilitation period is still running and the offender commits a summary offence, a minor offence that can only be tried in a magistrates court, the minor offence will not affect the rehabilitation period for the other offence; each offence will expire separately. For example, if someone received a two-year probation order, then one year later was fined for a minor offence, the probation order would become spent before the fine. Therefore once the probation order is spent, only the fine would need to be disclosed until it became spent. Most public order and motoring offences, but not drink driving, are summary offences that can only be tried in a magistrates court. If the further offence is a serious one that could be tried in the crown court, then neither conviction (even if the first one is for a minor offence) will become spent until both rehabilitation periods are over. For example, if someone received a two-year probation order, then one year later was fined for a serious offence, both convictions would have to be disclosed until the fine became spent. Offences like theft, and criminal damage of 200 or more, are regarded as serious offences that can be tried in the crown court. If the further conviction leads to a prison sentence of more than twoand-a-half years, neither conviction will ever become spent. If however the first conviction leads to a prison sentence of more than twoand-a-half years, later convictions with fixed rehabilitation periods

23 Disclosures, law and practice will become spent separately. For example, if someone was given a three-year sentence and later received a fine, the conviction for the prison sentence will always have to be disclosed, but the fine would only have to be disclosed for five years. Once a conviction becomes spent, it remains spent, even if a person is convicted of other offences later. Concurrent and consecutive sentences If an offender receives two or more prison sentences in the course of the same proceedings, the rehabilitation period will depend on whether they are to run concurrently or consecutively. For example, two six-month terms ordered to run consecutively are treated as a single term of 12 months, giving a rehabilitation period of 10 years. But two sixmonth sentences ordered to take effect concurrently are treated as one term of six months, giving a rehabilitation period of seven years. Prison sentences ordered to take effect consecutively to sentences already being served are not affected by this rule. Benefits of the Act Applicants with a criminal record who are asked on an application form or at an interview whether they have any previous convictions can answer no if the convictions are spent and the job applied for is not excepted (see Exceptions to the Act, appendix B) from the Act. Under the Act, a spent conviction shall not be proper grounds for not employing or for sacking someone. If, however, job applicants do not disclose unspent convictions if asked to do so, they may be found out, dismissed on the grounds of having deceived the employer and possibly prosecuted. The Act does not provide any means of enforcing a person s right not to be refused employment (or entry into a profession) on the grounds of a spent conviction. However, if an employee can prove that they have been dismissed for a spent conviction and they have been in employment for a year or more, they may be able to claim unfair dismissal under employment legislation. The Act makes it an offence for anyone with access to criminal records to disclose spent convictions unless authorised to do so. The Act makes it a more serious offence to obtain such information by means of fraud, dishonesty or bribe. The Data Protection Act 1984, as amended, also makes it an offence to procure or supply confidential computer data. In practice, because someone would be dependent on the police laying charges and the Crown Prosecution Service bringing a prosecution, they are unlikely to be able to take any action. 21

24 Appendix B Schedule 1 and 2 of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 as amended (abridged version) There are some offices and occupations in which people are expected to declare their convictions, even if they are spent. Broadly the list of exceptions to the Act cover: those whose duties involve regular contact with children and vulnerable adults (see below) certain professions (see below) in areas such as health, accountancy, and the law senior managers (see below) and directors in banking and financial services appointments to jobs where national security may be at risk A senior manager in financial services is an individual other than a director: (1) who is employed by a firm or a body corporate within a group of which the firm is a member (2) to whom the governing body of the firm, or a member of the governing body of the firm, has given responsibility for management and supervision (3) who, if the individual is employed by the firm, reports directly to the governing body, or a member of the body, or the chief executive, or the head of a significant business unit and (4) who, if the individual is employed by a body corporate within the group, reports directly to a person who is the equivalent of a body or person referred to in 3. Schedule 1: Excepted professions, offices, employments, work and occupations Professions 1 medical practitioner 2 barrister (in England and Wales), advocate (in Scotland), solicitor 3 chartered accountant, certified accountant 4 dentist, dental hygienist, dental auxiliary 5 veterinary surgeon 22

25 Disclosures, law and practice 6 nurse, midwife 7 ophthalmic optician, dispensing optician 8 pharmaceutical chemist 9 registered teacher (in Scotland) 10 any profession to which the Health Professions Order 2001 applies and which is undertaken following registration under that Act 11 registered osteopath 12 registered chiropractor 13 chartered psychologist 14 actuary 15 registered foreign lawyer 16 legal executive 17 receiver appointed by the Court of Protection Offices, employments and work 1 judicial appointments 2 the Director of Public Prosecutions and any office or employment in the Crown Prosecution Service 3 procurators fiscal and district court prosecutors, and any employment in the office of a procurator fiscal or district court prosecutor or in the Crown Office 4 designated officers for magistrates courts, for justices of the peace or for local justices clerks and their assistants 5 clerks (including depute and assistant clerks) and officers of the High Court of Justiciary, the Court of Session and the district court, sheriff clerks (including sheriff clerks depute) and their clerks and assistants 6 constables, persons appointed as police cadets to undergo training with a view to becoming constables and persons employed for the purposes of, or to assist the constables of, a police force established under any enactment; naval, military and air force police 7 any employment which is concerned with the administration of, or is otherwise normally carried out wholly or partly within the precincts of, a prison, remand centre, young offender institution, and members of boards of visitors [now known as independent monitoring boards] appointed under section 6 of the Prison Act 1952 or of visiting committees appointed under section 7 of the Prisons (Scotland) Act traffic wardens appointed under section 81 of the Road Traffic Regulation Act 1967 or section 9 of the Police (Scotland) Act probation officers appointed under Schedule 3 of the Powers of Criminal Courts Act

26 Appendix B Schedule 1 and 2 of the Rehabilitation of Offenders Act 10 revoked 11 revoked 12 any employment or other work which is concerned with the provision of care services to vulnerable adults and which is of such a kind as to enable the holder of that employment or the person engaged in that work to have access to vulnerable adults in receipt of such services in the course of his normal duties 13 any employment or other work which is concerned with the provision of health services and which is of such a kind as to enable the holder of that employment or the person engaged in that work to have access to persons in receipt of such services in the course of his normal duties 14 any work which is (a) work in a regulated position; or (b) work in a further education institution where the normal duties of that work involve regular contact with persons aged under any employment in the Royal Society for the Prevention of Cruelty to Animals where the person employed or working, as part of his duties, may carry out the killing of animals 16 any office or employment in the Serious Fraud Office 17 any office or employment in the National Crime Squad or the National Criminal Intelligence Service 18 any office or employment in Her Majesty s Customs and Excise 19 any employment which is concerned with the monitoring, for the purposes of child protection, or communications by means of the internet 20 any employment or other work which is normally carried out in premises approved under section 9 of the Criminal Justice and Court Services Act any employment or other work which is normally carried out in a hospital used only for the provision of high security psychiatric services Regulated occupations 1 firearms dealer 2 any occupation in respect of which an application to the Gaming Board for Great Britain for a licence, certificate or registration is required by or under any enactment 3 director, controller or manager of an insurer 4 dealer in securities 5 manager or trustee under a unit trust scheme 24