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Can I reject a job application based on a spent conviction?
- AuthorEmployment Team
When interviewing for new employees, you may well encounter a candidate that discloses a prior conviction to you. If that conviction is “spent”, then you must treat the applicant as if the conviction never happened, and in many cases it would be unlawful to refuse to hire a candidate based on that fact. However, there are some circumstances where you can lawfully reject an applicant with a spent conviction, and in this article our Employment Law team detail those circumstances, as well as what a spent and unspent conviction is.
What is the difference between a spent and unspent conviction?
Under the Rehabilitation of Offenders Act 1974, convictions that are handed down have a set “rehabilitation period” which is dependant on how severe the penalty was. Once that period has been completed, the conviction becomes spent and is removed from an individual’s criminal record. In many cases, a spent conviction does not have to be legally disclosed and will not show up in background checks. Before that rehabilitation period is met, the conviction is known as “unspent” and so candidates will have to legally disclose them in job applications and they will show up in any background checks undertaken.
If a job applicant has a conviction that has become spent after the defined period of time has lapsed, then you must treat them as if their conviction has not happened. Usually, if you refuse to employ a “rehabilitated” person because they have spent convictions, it will be deemed unlawful.
When do spent convictions have to be disclosed?
There are however exceptions to this rule. To lawfully reject a prospective candidate due to a spent conviction, it must be because the job in question involves working with vulnerable individuals or because the role is in a particular profession where there is a risk. Examples of these excluded professions are:
- healthcare professional;
- police officer;
This will usually be disclosed through a DBS check which will be required in certain sectors.
If the job applicant applies for an excluded job they must disclose all convictions, whether they are spent or not. It is your duty to explain to the job applicant that they have applied for an excluded job and so advise them that they must disclose all spent convictions.
It will then be your decision as to whether to continue with the recruitment process. If the conviction was something which conflicts with the position applied for, you may decide to withdraw any offer of employment due to risks of safety of other individuals.
If an unspent conviction is voluntarily disclosed to you, you will be in a position to choose whether to continue. You should weigh up the nature of the conviction against the work which is to be conducted and the reputation of the company. Depending on the nature of the conviction, you may decide that there is little risk and continue with the recruitment process.
If you are unsure whether you have grounds to reject a prospective employee with a spent conviction, or have any other questions regarding this article, you can contact the Employment team on 023 8071 7717 or email email@example.com.
This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.