Following introduction of the Legal Aid Sentencing and Punishment of Offenders Act 2012, employers should amend those policies that require an employee to disclose previous convictions.
Typically these polices applies apply to job applicants but are also often applied to those;
- considered for promotion or
- a transfer into new or sensitive roles.
There appears to be no change to the categories of occupation that are exempt from the disclosure protection rules.
Particular care needs to be applied to those who are twenty years of age, For the purposes of the Act, there are two categories of offender, those who are adults and those under 18 years on the day of the conviction (not the day of the of offence and not the day of the sentence)
Summary of the new periods:
Adult rehabilitation period
Under 18 (at time of conviction) rehabilitation period
|Custodial sentence of more than 6 months and not exceeding 30 months||48 months following the end of the sentence||24 months following the end of the sentence|
|Custodial sentence of not more than 6 months||24 months following the end of the sentence||18 months following the end of the sentence|
|A fine||12 months following the date of conviction||6 months following the date of conviction|
|Compensation order||Date on which the order is settled in full||Date on which the order is settled in full|
|Community order (or youth rehabilitation order)||12 months after the last day on which the order is to have effect||6 months after the last day on which the order is to have effect|
|Relevant order (e.g. conditional discharge, hospital order disqualification etc.)||The last day on which the order is effective||The last day on which the order is effective|
The Rehabilitation of Offenders Act 1974 provided that employees and prospective employees (even when asked) do not need to disclose previous convictions based on a combination of the seriousness of the sentence and the time that has lapsed since the sentence was imposed. Some offences, such as a fine, are based on the time of the sentence, others such as custody, are based on the end of the custodial period
The custodial period relates to a term of imprisonment and is the full length of the sentence not the date on which the person was released on licence. That means that prisoners often released halfway through their sentence must still calculate the time of the entire sentence (v.i.z. time inside prison plus time on release).
For those employers considering circumventing the legislation, remember that in many circumstances obtaining and disclosing previous convictions can, in itself be a criminal offence.
Note: these disclosure rules apply equally to criminal proceedings and service proceedings (such as a court martial).