24 May 2013

What is a protected conviction/caution?

If an employer asks a job applicant about their criminal record – the job applicant must disclose any spent convictions/cautions if they are applying for a certain job (e.g. a nurse). However, from 29 May 2013, a job applicant will not be required to disclose a protected conviction/caution. Hence, a job application form should notify a job applicant that they are not required to disclose a protected conviction/caution.
 
Protected conviction
 
A protected conviction is a conviction where:
  • Five years and six months or more have passed since the date of the conviction if the job applicant was under 18 years at the time of the conviction, or
  • 11 years or more have passed since the date of the conviction if the job applicant was 18 years or over at the time of the conviction, and
  • The job applicant was not convicted for an offence listed in art. 2A(5) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (e.g. cruelty to children).
  • The job applicant did not serve a custodial sentence or sentence of service detention in respect of the conviction.
  • The job applicant has not been convicted of any other offence at any time.

Protected caution

A protected caution is a caution where:
  • Two years or more have passed since the date on which the caution was given if the job applicant was under 18 years at the time the caution was given, or
  • Six years or more have passed since the date on which the caution was given if the job applicant was 18 years or over at the time the caution was given, and
  • The caution was not given for an offence listed in art. 2A(5) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (e.g. cruelty to children).

Source: Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 [SI 2013/1198].

Comment

The amendments to the the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 is the Government's response to the Court of Appeal's judgment in T v Chief Constable of Greater Manchester [2013] EWCA Civ 15.

On 27 March 2013, the Disclosure and Barring Service announced that a Criminal Record Certificate will not disclose a protected conviction/caution.
 

4 comments:

  1. Roger Clarke28 May, 2013

    Amending job application forms sounds like a job for HR in the public sector.

    ReplyDelete
  2. Tony Trotman28 May, 2013

    Please note that the Police Act 1997 (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 confirms that a criminal record certificate will not disclose a protected conviction/caution: http://tinyurl.com/ncysuek

    ReplyDelete
  3. Tony Trotman29 May, 2013

    Can an employer ask an individual to declare details of all convictions and cautions?

    An employer can only ask an individual to provide details of convictions and cautions that they are legally entitled to know.

    Where a Standard or Enhanced certificate can legally be requested (this is where the position is one that is listed in the Rehabilitation of Offenders Act 1975 (Exceptions) Order 1975), an employer can only ask an individual about convictions and cautions that would fall under the rules described above. That means only those convictions and cautions that would be disclosed on a DBS certificate.

    If an employer takes into account a conviction or caution that would not have been disclosed they are acting unlawfully under the Rehabilitation of Offenders Act 1974.

    When completing the DBS application form, a question will be asked whether you have ever been convicted of a criminal offence. The response to this question should only be in relation to convictions which would not be subject to filtering.

    There are a small number of defined positions where details of all convictions and cautions may be taken into account. These positions do not come through the DBS process. Examples are national security and police vetting.

    Source: DBS filtering guidance (29 May 2013). The guidance is available at:
    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/203519/Filtering_guidance.pdf

    ReplyDelete
  4. Tony Trotman23 December, 2013

    The Disclosure & Barring Service has published a sample policy statement on the recruitment of ex-offenders.

    The policy is available at: http://tinyurl.com/pqnfos7

    ReplyDelete