The Rehabilitation of Offenders Act 1974
Employing people with a criminal record
Gathering information about criminal records
Details about convictions
Existing employees
Assessing the relevance of criminal records
Implementing safeguards

The Rehabilitation of Offenders Act 1974
The Rehabilitation of Offenders Act 1974 was introduced to ensure that ex-offenders who have not reoffended for a period of time since the date of their conviction are not discriminated against when applying for jobs. In that an offender who has not been reconvicted for a number of years should no longer be liable 'to have his present pulled from under his feet by his past'. The Rehabilitation of Offenders Act enables ex-offenders to 'wipe the slate clean' of Their criminal record in the sense that, unless the post they are applying for is exempted (see below), they are no longer legally required to disclose to organisations convictions that have become 'spent'. Or put the other way round, the Act makes it illegal for an organisation to discriminate against an ex-offender on the grounds of a 'spent' conviction.

In order to protect certain vulnerable groups within society there are a large number of posts and professions that are exempted from the Rehabilitation of Offenders Act. These include posts involving access to children, young people, the elderly, disabled people, alcohol or drug misusers and the chronically sick. Many health service appointments and jobs involving the administration of justice, banking, other financial services and national security are also exempted. In such cases, organisations are legally entitled to ask applicants for details of all convictions, irrespective of whether they are 'spent' or 'unspent' under the Rehabilitation of Offenders Act.

Cautions, reprimands and final warnings are not considered to be criminal convictions and so are not covered by the Rehabilitation of Offenders Act. Cautions, reprimands and final warnings become 'spent' immediately and so may be considered by organisations only in relation to exempted posts.

Employing people with a criminal record
Whereas previously ex-offenders faced the dilemma of whether or not to disclose their convictions when applying for jobs, the introduction of the Criminal Records Bureau makes it possible for organisations to require all potential employees to obtain a Disclosure. It is therefore important that ex-offenders learn how to disclose offences in a manner that does not jeopardise their chances of employment. For their part, organisations that decide to make use of the new service will need to decide how to handle the increased flow of criminal record information sensibly and responsibly taking into account legal obligations and good practice. It is recommended that the following framework for the selection of new employees is adopted.

Gathering information about criminal records
Organisations are not legally required to obtain criminal record information from prospective employees. At the outset, organisations need to decide whether, given the nature of the jobs they are seeking to fill, it is appropriate to ask about criminal records and obtain a Disclosure. The fact that a person has a criminal record is frequently irrelevant to the job for which they are applying. Organisations should seek a Disclosure only in relation to posts that involve a degree of risk. Disclosure should not be used as a blanket requirement in all circumstances. It is strongly recommended that organisations wishing to recruit confidently from the widest possible pool of applicants ensure that the disclosure of criminal record information is used as one tool within the overall recruitment process.

Details about convictions
Candidates invited to interview should be told in writing that relevant criminal convictions and other associated information will be discussed at the interview in order to assess job-related risks. They should be encouraged to submit appropriate written details and dates in confidence to a named person responsible for ensuring the security of this highly sensitive information using an envelope marked 'private and confidential'. They should also be invited to attach any other information they wish to draw attention to that may improve understanding and fair decision-making.

Organisations seeking to recruit people for posts that are exempted under the Rehabilitation of Offenders Act should make it clear that the post requires the disclosure of all criminal record information, including details and dates of 'spent' convictions, cautions, reprimands and final warnings. Where the post is subject to Enhanced Disclosure, other relevant non-conviction information, such as police enquiries and pending prosecutions should also be asked for.

Applicants should be given the opportunity to discuss Disclosure information before a final recruitment decision is made as part of a post-interview process

Existing employees
In cases where someone has been employed, and it is then discovered they have failed to disclose an 'unspent' conviction, they should not necessarily be dismissed. Only after a full appraisal of the situation, including the risks involved, should dismissal be considered. The organisation should first establish whether the conviction is relevant to the post. If an employee deliberately withheld conviction information to gain employment in a non-risk area, appropriate disciplinary procedures should be considered. Where there is a significant risk, the organisation might consider the introduction of safeguards, or moving the employee to a more suitable job. Evidence of previous convictions should not be used as an excuse to dismiss a person for poor job performance. The track record of the individual should be carefully assessed. If it is satisfactory this should be considered positively (under The New Care Standards Act existing employees need to be checked by 2003)

Assessing the relevance of criminal records
The suitability for employment of a person with a criminal record will vary, depending on the nature of the job and the details and circumstances of any convictions. Deciding on the relevance of convictions to specific posts is not an exact science. An assessment of an applicant's skills, experience and conviction circumstances should be weighed against the risk assessment criteria for the job. It should be remembered that employing people on the basis of information provided in an application form and a short interview, irrespective of whether they have a criminal record or not, is never risk free. Staff responsible for recruitment need to identify what risks might be involved and what precautions put in place in order to provide satisfactory safeguards.

To facilitate this process, an applicant's criminal record should be assessed in relation to the tasks he or she will be required to perform and the circumstances in which the work is to be carried out. It is recommended That organisations consider the following when deciding on The relevance of offences to particular posts:

does the post involve one-to--one contact with children or other vulnerable groups as employees, customers and clients

what level of supervision will the post holder receive

does the post involve any direct responsibility for finance or items of value

does The post involve direct contact with the public

will the nature of the job present any opportunities for the post holder to reoffend in the place of work?

The answers to such questions should help organisations to determine the relevance of convictions to specific posts. For example, paedophile, or child pornography offences would almost certainly disqualify any person required to work with children; some violent off ences would be relevant to positions involving unsupervised contact with the public; fraud should be considered in relation to posts involving the handling of significant amount of money; and theft in relation to posts involving the handling of stock.

In some cases, The relationship between the offence and The post will be clear enough for The organisation to decide easily on the suitability of the applicant for the job. In other cases, the decision may not be so clear-cut. For short-listed applicants who are assessed as meeting the requirement of the person specification and who then disclose a criminal record that is not related directly to The post, organisations should discuss the relevance of each offence with the applicant. It should be remembered tat no two offences are exactly alike. For example, a premeditated burglary that involves extensive damage to property and the physical intimidation of the occupants ought not to be considered in The same light as someone convicted of reaching in through an open window and stealing a purse on a whim- Whilst it will not be possible to carry out a thorough risk assessment on each individual, it is recommended that the following issues are taken into account as a minimum requirement:

the seriousness of The offence and its relevance to the safety of their employees, customers, clients and property

the length of time since the offence occurred

any relevant information offered by the applicant about the circumstances which led to the offence being committed, for example the influence of domestic or financial difficulties

whether the offence was a one-off, or part of a history of offending

whether the applicant's circumstances have changed since the offence was committed, making reoffending less likely

the country in which the offence was committed; some activities are offences in Scotland and not in England and Wales, and vice versa

whether the offence has since been decriminalised by Parliament

the degree of remorse, or otherwise, expressed by the applicant and their motivation to change.

(With reference to the New Care Standards Act doubts over an applicants application guidance should be sort from your local registration and inspection department )

Registered Organisations are required to have a written policy for the handling of Disclosure information. Criminal record information should be disclosed only to certain other people as defined within the Police Act 1997. Offence information should be kept securely in lockable filing cabinets. Access to keys should be restricted to individuals responsible for recruitment and personnel. Disclosures should be destroyed effectively, not later than the period specified in the 'Code Of Practice'. The name of the individual, the date, type and reference number of the Disclosure and the position applied for may be kept as a record of the recruitment decision taken and should be kept as confidential, secure information. All organisations should be aware that action could be taken against them if the CRB 'Code of Practice' is not complied with.

Organisations registering with carecheck will be supplied with example documentation policies and procedures.

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