Spent And Unspent Convictions: How Do They Affect Employment Checks?
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The terms spent and unspent convictions often come up when a person’s criminal records are brought up, usually when employers conduct background checks before onboarding or during rescreening. Whether an individual’s conviction is spent or unspent affects certain aspects of hiring and employment, so it’s important to understand the difference between the two.
In this article, we’ll discuss the difference between spent and unspent convictions, how it relates to employment, and your responsibilities as an employer.
Convictions and Other Types of Criminal and Offence Records
Before we talk about the difference between spent and unspent convictions, let’s first define what a conviction is together with the other types of offence records. This is equally important because some records should not affect aspects of employment, such as hiring.
Convictions
A conviction is a formal declaration by a court that a person is guilty of a criminal offence. It becomes part of the individual's criminal record and can have significant consequences on their life. When someone is found guilty, they might receive:
- A fine
- Discharge
- Prison sentence
- Community Service
- Other penalty
Caution
A caution is a formal warning given by the police to someone who admits to a minor offence. It's not a conviction, but it does go on the person's police record and may be disclosed in certain situations (like job applications).
The period for which cautions can be subject to disclosure usually depends on the offence itself and the age of the person. If they are over 18, then cautions are subject to disclosure for 7 years; 2 years if they are under 18.
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Diversionary Youth Conference
This is an alternative way of dealing with young offenders (under 18) for less serious crimes. It involves a meeting between the offender, the victim (if appropriate), and others to discuss the offence and agree on a plan to make amends. It's not a conviction, but it's recorded for a certain period and can be subject to disclosure for 2 years after acceptance.
Informed Warning
This is similar to a caution, but it's a more informal warning given by the police to young offenders. It doesn't go on their criminal record, but it is recorded on their police record and disclosed for 12 months.
Relevant Police Information (Soft Intelligence):
This refers to information held by the police that doesn't relate to a conviction. It could be details about incidents where someone wasn't charged, or intelligence suggesting someone is at risk of offending. It's sometimes disclosed in enhanced criminal record checks for certain jobs.
Barred List:
This is a list maintained by the Disclosure and Barring Service (DBS) that contains the names of individuals who are barred from working with children or vulnerable adults due to a conviction or caution for certain offences.
Important Note: It's crucial to understand that cautions, diversionary youth conferences, and informed warnings are not convictions. However, they can still have some implications, particularly in employment contexts.
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The Difference Between Spent and Unspent Convictions
How convictions can be disclosed and used for employment purposes depend largely on whether they are spent or unspent.
Generally, a spent conviction is one that has been removed from a person’s records in line with the Rehabilitation of Offenders Act 1974 (except in certain circumstances). It’s supposed to be treated like it never happened, respecting a person’s right to rehabilitation.
An unspent conviction is one that shows up on all levels of DBS checks.
When a conviction becomes spent lies in the Rehabilitation Period. Here’s a list of sentences and their corresponding Rehabilitation Period:
Hence, an adult who was sentenced to a fine still has an unspent conviction unless 5 years have already passed after their sentencing - even if they already paid the fine. Meanwhile, receiving a prison sentence of at least 30 months means the conviction will remain unspent.
An Overview of DBS Checks and Filtering Information
DBS checks is the UK’s form of criminal records often conducted during the hiring process. There are 4 types of DBS checks - Basic, Standard, Enhanced, and Enhanced with a Barred List. Each type discloses different offence information. To better understand, consider the table below:
“Filtering” means some information on cautions and minor convictions won’t appear on the issued DBS certificate. What information is filtered (removed) depends mostly on the offence itself. Generally, minor offences and certain old ones are filtered from Standard and Enhanced Checks, especially if the offence was committed under the age of 18.
Difference Between Spent and Unspent Convictions: Your Responsibility as an Employer
Your first responsibility as an employer is to respect and follow the law. Ultimately, this means following the Rehabilitation Act by NOT letting spent convictions affect your employment decisions (except in some circumstances). To minimise the risk of unlawful actions, only collect information through legal channels, which, in this case, mostly refer to the DBS checks.
You also have responsibilities when it comes to:
Conducting The Right Level of DBS Check
As an employer, you’re only automatically allowed to ask an applicant about their UNSPENT convictions. This means you are allowed to ask an applicant to show you their Basic DBS Certificate.
You CANNOT request for a higher level DBS check unless the job you’re looking to hire for belongs to the Exceptions Order. Jobs under this Exceptions Order generally involve access to the vulnerable population (eg. children, older people, etc).
To know more about the importance of higher-level DBS checks in safeguarding vulnerable adults, you may read our guide here.
If you need help finding out which level of DBS check is right for your employee, you may use this tool.
Refusing a Job
As an employer, you may refuse to hire someone for their unspent convictions.
However, for jobs NOT under the Exception Order, it’s illegal for an employer to subject a person to prejudice because of a spent conviction.
Meanwhile, it may be illegal for you to hire someone if their spent conviction deems them unfit to take on a job under the Exception Order (eg. certain drug offences disqualifies someone from working in a school).
Asking to Disclose Spent and Unspent Convictions
During the application process, you may provide candidates with forms they have to complete. Some questions may lead them to disclose their criminal records. What are you allowed to ask?
By law, you’re only allowed to ask about unspent convictions.
Asking about spent conviction requires that the job you’re recruiting for is under the Exception Order. Refusing to answer or submit the right level of DBS check certificate is grounds for adverse action.
Still, remember that there’s no legal duty for an employee or candidate to disclose their convictions.
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Protecting the Candidate’s Data
You are also legally required to protect the candidate’s personal information - crime records included.
The difference between spent and unspent convictions doesn’t matter when it comes to obtaining the candidate’s consent. An informed, written consent is necessary before any type of DBS checks can be conducted.
Furthermore, they must use the data solely for its intended purpose, which, in this case, is for employment. It must also stay confidential.
Beyond Spent and Unspent Convictions: Pre-Employment Background Checks
DBS checks in the UK are an integral part of keeping the workplace safe, particularly for the vulnerable population. But, hiring the best talent for the role necessitates thorough background screening through other checks that verify their education qualification, professional experience, and character.
For all levels of DBS checks - Basic, Standard, and Enhanced - and other background checks, Veremark is here to help you.
Our award-winning software fully automates the checks. All you need to do is order the checks you need, customise your requirements, and wait for the results. Easily integrate the results with your workflow, so you can make more informed decisions, faster.
No lock-in periods, no contracts - speak with us today.
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FAQs
In the UK, convictions that result in a prison sentence of over 30 months are never spent. This means they will always appear on a person's criminal record and can be disclosed to employers.
Serious offences, such as those involving violence, sexual crimes, and crimes against children, are never filtered from a DBS check. This means they will always be disclosed on a DBS certificate, regardless of when the offence occurred or the age of the offender at the time.
Spent convictions generally do not show up on basic DBS checks. However, they may be disclosed on standard and enhanced DBS checks, depending on the type of offence, the job being applied for, and other relevant factors.
FAQs
This depends on the industry and type of role you are recruiting for. To determine whether you need reference checks, identity checks, bankruptcy checks, civil background checks, credit checks for employment or any of the other background checks we offer, chat to our team of dedicated account managers.
Many industries have compliance-related employment check requirements. And even if your industry doesn’t, remember that your staff have access to assets and data that must be protected. When you employ a new staff member you need to be certain that they have the best interests of your business at heart. Carrying out comprehensive background checking helps mitigate risk and ensures a safer hiring decision.
Again, this depends on the type of checks you need. Simple identity checks can be carried out in as little as a few hours but a worldwide criminal background check for instance might take several weeks. A simple pre-employment check package takes around a week. Our account managers are specialists and can provide detailed information into which checks you need and how long they will take.
All Veremark checks are carried out online and digitally. This eliminates the need to collect, store and manage paper documents and information making the process faster, more efficient and ensures complete safety of candidate data and documents.
In a competitive marketplace, making the right hiring decisions is key to the success of your company. Employment background checks enables you to understand more about your candidates before making crucial decisions which can have either beneficial or catastrophic effects on your business.
Background checks not only provide useful insights into a candidate’s work history, skills and education, but they can also offer richer detail into someone’s personality and character traits. This gives you a huge advantage when considering who to hire. Background checking also ensures that candidates are legally allowed to carry out certain roles, failed criminal and credit checks could prevent them from working with vulnerable people or in a financial function.
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