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Commonly Asked Questions
Guidance provided by the CRB , the FSA and the Information Commissioner
A. CRIMINAL RECORDS
• What is a Spent Conviction?
The Rehabilitation of Offenders Act (ROA) 1974 sets out to make life easier for many people who have been convicted of a criminal offence and who have since lived on the right side of the law. A person convicted of all but the most serious criminal offences and who receives a sentence less than 2.5 years in prison, benefits from the Act if they are not convicted again during a specified period. This is called the rehabilitation period. In general terms, the more severe a penalty is, the longer the rehabilitation period.
Once a rehabilitation period has expired and no further offending has taken place, a conviction is considered to be 'spent'. Once a conviction has been spent, the convicted person does not have to reveal it or admit its existence in most circumstances, including, for example, when applying for a job. In most circumstances, an employer cannot refuse to employ someone, or dismiss them, on the basis of a spent conviction.
There are some exceptions to the general principle that spent convictions do not have to be declared. When assessing the suitability of a person for a position of trust, an employer is entitled to ask a candidate to reveal details of all convictions, whether spent or not. This is, in part, to ensure that children and other vulnerable groups are adequately protected from those in positions of authority over them. These positions of trust, or excepted professions, are set out in the ROA Exceptions Order.
• I've received a Disclosure and it contains criminal convictions or further information. What should I do?
It is important, that employers do not disqualify someone solely on the basis of having been convicted. Employers should reach a balanced judgment based on factors such as:-
(1) the nature of the offence
(2) Its relevance to the post, position or profession in question
(3) How long ago the offence took place
(4) The person’s age at the time
(5) Whether it was an isolated offence or part of a pattern of offending
(6) What is know about the person’s conduct and character before or since
(7) (the nature of some offences or inclusion on certain lists, can be enough to disqualify someone from specific posts).
• What is the position of the FSA?
“In determining a person’s honesty, integrity and reputation, the FSA will have regard to matters including, but not limited to, those set out in FIT 2.1.3 G which may have arisen either in the United Kingdom or elsewhere. The FSA should be informed of these matters (see SUP 10.13.16 R), but will consider the circumstances only where relevant to the requirements and standards of the regulatory system.
For example,under FIT 2.1.3 G (1), conviction for a criminal offence will not automatically mean an application will be rejected. The FSA treats each candidate’s application on a case-by-case basis, taking into account the seriousness of and circumstances surrounding the offence, the explanation offered by the convicted person, the relevance of the offence to the proposed role, the passage of time since the offence was committed and evidence of the individual’s rehabilitation.”
“2.1.3 G The matters referred to in FIT 2.1.1 G to which the FSA will have regard include, but are not limited to:
(1) whether the person has been convicted of any criminal offence; this may include, where relevant, any spent convictions excepted under the Rehabilitation of Offenders (Exceptions) Order 1975 (as amended) (see FIT 2 Annex 1G);
(2) particular consideration will be given to offences involving fraud, theft, false accounting, serious tax offences, corruption offences and offences against public justice (such as perjury, perverting the course of justice and intimidation of witnesses or jurors) or other dishonesty (whether or not in Great Britain) or an offence (whether or not in the United Kingdom) relating to companies, building societies, industrial and provident societies, credit unions, friendly societies, insurance, banking or other financial services, insolvency, consumer credit or consumer protection, money laundering, market manipulation or insider dealing. (Spent convictions which are excepted under the Rehabilitation of Offenders (Exceptions) Order 1975 (as amended) must be included.)”
B. DATA PROTECTION
Subject access and employment references
This good practice note issued by the Information Commissioner clarifies how the Data Protection Act 1998 applies to employment references. The recommendations also apply to other types of reference, such as those provided for educational purposes.
The Information Commissioner receives a lot of enquiries about:
• whether organisations can release a reference to the person who is the subject of the reference;
• how the Act applies to references; and
• the fact that references may have been given ‘in confidence’.
Individuals have a right to a copy of information held about them that is covered by the Act. When an individual asks for a copy of a reference written about them, many employers refuse to provide it because it was supplied in confidence. This may breach the Act. The Act applies differently to references which have been given by an employer and those which have been received by an employer.
• Do you have to give a copy of a reference you have written?
If someone asks for a copy of a confidential reference you have written about them relating to training, employment or providing a service, you do not have to provide it because of an exemption in the Act.
However, you may choose to provide the information. It would seem reasonable to provide a copy if a reference is wholly or largely factual in nature, or if the individual is aware of an appraisal of their work or ability.
• Do you have to give a copy of a reference you have received from someone else?
References received from another person or organisation are not treated in the same way. If you hold the reference in a way that means it is covered by the Act, you must consider a request for a copy under the normal rules of access. An individual can have access to information which is about them, but may not necessarily have access to information about other people, including their opinion, provided in confidence.
The references you have received may be marked ‘in confidence’. If so, you will need to consider whether the information is actually confidential. You cannot sensibly withhold information which is already known to the individual. Factual information such as employment dates and absence records will be known to an individual and should be provided. Information relating to performance may well have been discussed with the employee as part of an appraisal system.
Where it is not clear whether information, including the referee’s opinions, is known to the individual, you should contact the referee and ask whether they object to this being provided and why. Even if a referee says that they do not want you to release their comments, you will need to provide the reference if it is reasonable in all the circumstances to comply with the request without their consent. You should weigh the referee’s interest in having their comments treated confidentially against the individual’s interest in seeing what has been said about them.
When considering whether it is reasonable in all the circumstances to comply with a request, you should take account of factors such as:
• any express assurance of confidentiality given to the referee;
• any relevant reasons the referee gives for withholding consent;
• the potential or actual effect of the reference on the individual;
• the fact that a reference must be truthful and accurate and that without access to it the individual is not in a position to challenge its accuracy;
• that good employment practice suggests that an employee should have already been advised of any weaknesses; and
• any risk to the referee.
You should consider whether it is possible to keep the identity of the referee secret.
Recommended good practice
In most circumstances, you should provide the information in a reference, or at least a substantial part of it, to the person it is about if they ask for it. Even if the referee refuses consent, this will not necessarily justify withholding the information, particularly where this has had a significant impact on the individual, such as preventing them from taking up a provisional job offer. However, there may be circumstances where it would not be appropriate for you to release a reference, such as where there is a realistic threat of violence or intimidation by the individual towards the referee.
You should consider whether it is possible to conceal the identity of the referee, although often an individual will have a good idea who has written the reference. If it is not reasonable in all of the circumstances to provide the information without the referee’s consent, you should consider whether you can respond helpfully anyway (for example, by providing a summary of the content of the reference). This may protect the identity of the referee, while providing the individual with an overview of what the reference says about them.
May 24, 2006
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