Changes to the Rehabilitation of Offenders Act – what convictions have to be declared to an employer?

Reforms to the Rehabilitation of Offenders Act 1974 came into force on 28 October 2023. These changes significantly reduce the time people with criminal convictions are legally required to declare them to most potential employers after serving their sentence.

The Police, Crime, Sentencing and Courts Act 2022 (Commencement No.8) Regulations 2023 SI 2023/1128 brought S.193 of the Police, Crime, Sentencing and Courts Act 2022 into force with effect from 28 October 2023. S.193 amends the Rehabilitation of Offenders Act 1974 to reduce the periods of time after which certain offences become ‘spent’ and need no longer be disclosed to an employer.

Prior to the reforms, some offenders were required to disclose their sentences for the rest of their lives. This obviously created an incredibly unfair system for individuals who, for example, had offended decades ago in their youth, had received non-custodial sentences and had not re-offended, yet were often put at a disadvantage within the employment field and overlooked for positions they were duly skilled to undertake.

According to the Government’s press release, it is suggested that over 120,000 former offenders will find it easier to get work and turn their lives away from crime following a change in the law.

Now, custodial sentences of four years or less (and of more than four years for some less serious crimes) will be deemed ‘spent’ after a period of rehabilitation of up to seven years after the sentence has been served, provided that no further offence is committed in that period. Where an individual reoffends during the rehabilitation period, they will have to disclose both their original and subsequent offences to employers for the duration of whichever rehabilitation period is longer.

However, convictions for serious sexual, violent, or terrorist offences continue to never be spent, and stricter disclosure rules will continue to apply to jobs that involve working with vulnerable people.

The previous rehabilitation periods were:

• Community Order – one year beginning with the last day on which the order had effect
• Custody of six months or less – two years
• Custody of more than six months and up to 30 months – four years
• Custody of more than 30 months and up to four years – seven years
• For offences with custodial sentences of more than four years, the conviction was never spent

The new rehabilitation periods are as follows:

• Community Order – the last day on which the order had effect
• Custody of one year or less – one year
• Custody of more than one year and up to four years – four years
• Custody of more than four years – seven years

With regard to spent convictions, unless the role is an excepted role, an employer should not dismiss an existing employee for failing to disclose a spent conviction. Dismissing for a spent conviction may lead to a claim for unfair dismissal, if the employee has two years’ qualifying service to claim unfair dismissal.