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The Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 was commenced on 29 April last. The Act provides that certain minor criminal offences will become “spent” after seven years from the date of conviction. Effectively, this means that the conviction will disappear from a person’s criminal record.
This means that an employee is not required to disclose a spent conviction in any criminal background check. If a pre-employment questionnaire asks whether an employer has been convicted of an offence, if the conviction is spent, the employee can say no. However, a spent conviction must be disclosed if a potential recruit is to work with children or vulnerable adults unless they fall within a limited exception to this principle.
There are some general exceptions:
- It does not apply to persons who work (or who wish to work) for certain state employers concerned with security, defence and criminal justice matters and certain financial services
- The Act does not apply to all convictions. For example, the following convictions will never become “spent”: (i) sexual offences; (ii) one that led to a sentence of imprisonment of more than 12 months (if time was served) or a sentence of more the 2 years (if the sentence was suspended and no time was served); (iii) an offence which can only be heard by the Central Criminal Court.
- In general, a person can only benefit from the legislation if he or she has does not have more than one conviction (other than for minor public order offences and minor traffic offences).
The Act does not provide any particular cause of action or redress for employees or prospective employees. An employee who has more than 12 months service who was dismissed as a result of not having disclosed a spent conviction could bring a claim for unfair dismissal. However, no clear avenue of redress exists for employees with less than 12 months service, most notably, prospective employees.
Prior to the Act, employers were advised only to seek details of relevant convictions from prospective employees. However, the Data Protection Commissioner indicated that individuals need only disclose convictions which are relevant to the role, for example, a road traffic conviction for a transport position. The introduction of the Act will make it harder for employers to carry out comprehensive criminal background checks on employees.
For further advice on this issue please contact Julie Austin.