Reforms brought in to reduce employment barriers for former offenders

Confirmed in a recent Ministry of Justice press release, over 120,000 former offenders will now find it easier to seek employment and reintegrate into society sooner as they benefit from a change in the law.

Reforms under the Police, Crime, Sentencing and Courts Act 2022 which came into force on 28 October 2023 mean that the period of time that individuals with criminal convictions are legally required to declare their convictions to employers after serving their sentence has been significantly reduced.

The principles behind the reforms are focussed on ensuring that:

• Ex-offenders are helped to turn their back on crime and reduce reoffending.
• Certain custodial sentences will no longer need to be declared removing a significant barrier to offenders rebuilding their lives.
• The most serious offenders are exempt from changes to keep the public safe.

It is hoped that ex-offenders are able to get the “steady income, routine and purpose they need which cuts reoffending and ensures fewer members of the public become victims of crime” says Lord Chancellor and Justice Secretary, Alex Chalk KC.

What has changed?

The new rehabilitation periods are as follows:

*excluding serious sexual, violent, or terrorist offences, that continue to never be spent  

The previous rehabilitation periods were:  

Under the previous rules, some offenders needed to disclose their sentences for the rest of their lives.

Now, custodial sentences of four years become ‘spent’ after a seven-year period of rehabilitation, as long as no further offence is committed. The same applies to longer sentences for less serious crimes. Custodial sentences of a year or less will only need to be disclosed for one year.

The new law maintains a focus on public safety and stricter disclosure rules will continue to apply to jobs that involve working with vulnerable people, through standard and enhanced DBS checks.

DBS checks – a reminder

There are three levels of DBS check available: basic, standard and enhanced. Each level of DBS check reveals a different degree of a person's criminal record history: 

• Basic checks show unspent convictions.
• Standard checks show spent and unspent convictions and cautions.
• Enhanced checks show the same as a standard check plus other information held by local police that is considered relevant to the role. Enhanced checks may also show information stored on statutory lists (e.g., people considered unsuitable to work with children or vulnerable adults).

Employers can generally ask for a basic check for any position or purpose, but they can only obtain the higher checks for specified roles or where the role is undertaking regulated activity.

Standard checks are available for positions included in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. These include positions such as court officers or employment within a prison.

Enhanced checks are available for positions included in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 but also the Police Act 1997 (Criminal Records) regulations. They are also available for individuals working in "regulated activity", which is defined separately in relation to adults and children. However, the definitions are surprisingly narrow.

For adults, the work must involve:

• Work relating to a high security psychiatric hospital.
• Management of anyone who carries out activities with adults that are specifically defined as work with adults.
• Work relating to a Care Quality Commission inspection function where the inspector has the opportunity for contact with adults in circumstances that are specifically defined as work with adults.

Advice for employers

It is thought that for around half of vacancies, employers are likely to reject most individuals with a criminal record solely due to their record. Those with more serious convictions will be rejected for about 90 per cent of vacancies due to their conviction. Prison, the seriousness of the offences and the length of record exacerbates unemployment difficulties.

By reducing the period of time that individuals with criminal convictions are legally required to declare their served sentence convictions to employers, it is hoped that this will expand employment opportunities to qualified candidates who may otherwise have been rejected from positions. The reforms could therefore be seen as opportunity for employers to be looking at these untapped talent pipelines in a new way.

It is important to note that although the Act states that an employer cannot refuse to employ or dismiss someone because they have a spent caution or conviction unless an exception applies, there is no penalty attached to that, and the law does not provide any individual who is refused employment contrary to the Act with any entitlement to compensation or any other remedy.

However, as failure to disclose the detail or existence of spent convictions is not a lawful ground for dismissal, an employer cannot rely on such a failure as grounds for dismissal without notice. This also means that any employee dismissed for such a reason after they have acquired unfair dismissal protection – which is currently after two years’ continuous employment – will be unfairly dismissed.

If you require further advice in relation to the changes or DBS checks more generally, please contact Sharee Kitley.