The new year is a good opportunity for employers to review and refresh HR policies and procedures. One change that employers should be aware of, which came into effect at the end of October 2023, relates to when prison sentences become spent and therefore no longer need to be declared to prospective employers, which will have a knock-on effect for recruitment processes and paperwork.

The changes to the Police, Crime, Sentencing and Courts Act 2022 reduce the time people with certain criminal convictions are required to declare them to potential employers after serving their sentence. While these changes have been welcomed by thousands of ex-offenders and have been hailed by the government as removing a significant barrier to offenders rebuilding their lives, it will limit what employers can ascertain about a candidate’s past.

The changes for individuals over 18 years of age are as follows:

  • Sentences of one year or less become spent 1 year after the sentence term (reduced from between 2 – 4 years)
  • Sentences between 1 – 4 years become spent 4 years after the sentence term (reduced from 7 years)
  • Sentences of more than 4 years now become spent after 7 years, whereas under the old rules, sentences would never be spent

These changes will not apply to certain offenders who have committed serious sexual, violent or terrorist offences to ensure there is not an increased risk to the public. Additionally, for jobs involving vulnerable people, standard and enhanced Disclosure and Barring Service (DBS) checks will ensure that stricter rules continue to apply.

Tips for employers

Recruitment paperwork, systems regarding background checks and the disclosure of criminal records should be updated and recruitment teams should be made aware of the changes.

Remember that there is no requirement to disclose spent convictions and employers should, as a matter of good practice, not revoke job offers or dismiss current employees for failing to do so. Whilst there is no penalty under the criminal convictions legislation for refusing to employ someone with a spent conviction or dismissing them for not disclosing it, the individual may have a breach of contract claim where an offer is revoked or they are dismissed without notice. Employers should also be aware that dismissing someone for failing to disclose their spent conviction is not a fair reason for dismissal, meaning that if the employee has two years service, they could face unfair dismissal claims.