What does the law say about disclosing criminal records when applying for jobs?

What does spent mean?

How long does it take for criminal records to be spent?

Does my client need to disclose their criminal record?

My client has applied for a role that is covered by the ROA but has not been asked to disclose unspent convictions. Do they need to disclose anyway?

My client is a sex offender. Does this mean that they will always need to disclose their offence(s)?

Does my client need to disclose fixed penalty notices (FPNs) or penalty notices for disorder (PNDs)?

Does my client need to disclose allegations, arrests, matters that resulted in no further action (NFA) or not guilty verdicts?

I am referring my client to an employer/recruitment agency. Should I tell them about my client’s convictions?

What does the law say about disclosing criminal records when applying for jobs?

The Rehabilitation of Offenders Act 1974 gives jobseekers or prospective students with criminal records the right to legally withhold such information after a period of time. The Act allows most convictions (and cautions) to be considered spent after a specified period of time. This period is determined by the sentence or disposal that was received.

Once a caution or conviction is spent, the person is considered rehabilitated and the Act treats the person as if they had never committed an offence. This means that the person does not need to disclose the offence when applying for most jobs and courses, and has the right to withhold this information from a prospective employer or course provider.

Most jobs are covered by the ROA, but some are exempt. If a person applies for a job or course that is exempt from the ROA, the employer or course provider is entitled to request details of spent and unspent convictions and cautions and is entitled to take this information into account when determining the person’s suitability for the role or course.

For a list of jobs or roles that are exempt from the ROA, please see here.

What does spent mean?

Once a conviction, caution, reprimand or final warning becomes spent your client does not need to disclose it to most employers, or when applying for most courses, insurance or other purposes (e.g. applying for housing). It is against the law for an organisation to obtain information about an individual’s spent cautions or convictions unless the law specifically states that they can ask an exempted question; usually when someone is applying for a job or role that is exempt from the ROA.

How long does it take for criminal records to be spent?

For custodial and community sentences, the rehabilitation period will start from the end of the total sentence imposed by the court (including the licence period) – not from the time served in custody (i.e. the day of release). The rehabilitation period includes an additional buffer period that runs from the end of the sentence. This buffer period is determined by the length of total sentence imposed.

The buffer periods are halved if the person was aged under 18 when convicted, except for custodial sentences of six months or less where the buffer period will be 18 months.

The tables below provide a detailed guide about how long it takes for criminal records to be spent. We also have an easily accessible list of rehabilitation periods on our Spent? poster:

file_pdf Spent conviction poster (47KB)

file_pdf Spent conviction poster in Welsh (60KB)

Table A: Rehabilitation periods for custodial sentences and community sentences

Sentence/disposalRehabilitation period for adults (aged 18 and over when convicted) from end of sentence including licence periodRehabilitation period for young people (aged under 18 when convicted) from end of sentence including licence period
Sentence/disposalRehabilitation period for adults (aged 18 and over when convicted) from end of sentence including licence periodRehabilitation period for young people (aged under 18 when convicted) from end of sentence including licence period
Community order or youth rehabilitation order+Total length of order plus 1 yearTotal length of order plus 6 months
Prison sentence or detention in a young offender institution for 6 months or lessTotal length of sentence (including licence period) plus 2 yearsTotal length of sentence (including licence period) plus 18 months
Prison sentence or detention in a young offender institution for over 6 months and up to and including 30 months (2½ years)Total length of sentence (including licence period) plus 4 yearsTotal length of sentence (including licence period) plus 2 years
Prison sentence or detention in a young offender institution for over 30 months (2½ years) and up to 48 months (4 years)Total length of sentence (including licence period) plus 7 yearsTotal length of sentence (including licence period) plus 3½ years
Imprisonment or detention in a young offender institution for over 48 months (4 years) or a public protection sentenceNever spentNever spent

+A community order or youth rehabilitation order which has no specified end date has a default rehabilitation period of two years from the date of conviction or from the time the disposal is administered. If the order is subsequently changed, this will not affect the rehabilitation period. The rehabilitation period is not halved if the person was under 18 when convicted. The changes made to the Rehabilitation of Offenders Act 1974 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provided for all subsequent community orders to have an end date.

Table B below contains the rehabilitation period for sentences which do not have buffer periods and for which the rehabilitation period starts from the date of conviction.

Table B: Rehabilitation periods which do not have buffer periods so start from the date of conviction

Sentence/disposalRehabilitation period for adults (aged 18 or over at the time of conviction or at the time the disposal is administered)Rehabilitation period for young people (aged under 18 at the time of conviction or at the time the disposal is administered)
Sentence/disposalRehabilitation period for adults (aged 18 or over at the time of conviction or at the time the disposal is administered)Rehabilitation period for young people (aged under 18 at the time of conviction or at the time the disposal is administered)
Simple caution/youth caution++Spent immediatelySpent immediately
Conditional caution/ youth conditional caution3 months or when caution ceases to have effect if earlier3 months or when caution ceases to have effect if earlier
Absolute dischargeSpent immediatelySpent immediately
Bind overAt the end of the orderAt the end of the order
Conditional discharge orderAt the end of the orderAt the end of the order
Fine+++1 year6 months
Compensation order++++When paid in fullWhen paid in full
Attendance centre orderAt the end of the orderAt the end of the order
Care orderWhen order ceases to have effectWhen order ceases to have effect
Confiscation orderWhen order ceases to have effectWhen order ceases to have effect
Forfeiture orderWhen order ceases to have effectWhen order ceases to have effect
Hospital orderWhen order ceases to have effectWhen order ceases to have effect
Referral orderAt the end of the orderAt the end of the order
Relevant order+++++When order ceases to have effectWhen order ceases to have effect
Reparation orderSpent immediatelySpent immediately
DisqualificationsWhen order ceases to have effectWhen order ceases to have effect
Endorsements5 years2½ years

++Youth caution replaces the disposals: reprimands and final warnings, which were abolished in April 2013.

+++The rehabilitation period for a fine applies even if the person is subsequently imprisoned for default of the fine. Fines arising from fixed penalty notices (FPNs) and penalty notices for disorder (PNDs) are not covered by the Act as they do not form part of an individual’s criminal record so they do not have a rehabilitation period.

++++It is important that individuals obtain proof of payment of the compensation order from the court and keep this document to prove it has been paid in full. This evidence of payment may be required before a basic disclosure can be issued.

+++++A relevant order (e.g. restraining order or sexual offences prevention order (SOPO)) which has no specified end date has a default rehabilitation period of two years from the date of conviction or from the time the disposal is administered.

Does my client need to disclose their criminal record?

file_pdf Do I need to disclose – flowchart (265 KB)

My client has applied for a role that is covered by the ROA but has not been asked to disclose unspent convictions. Do they need to disclose anyway?

No. If your client has an unspent conviction and is applying for a role which is covered by the Act, then they are not legally required to disclose their conviction if they have not been asked to do so.

However, if they are aware that the role is subject to a basic criminal record check, they should disclose any unspent convictions to the organisation before consenting to the check.

My client is a sex offender. Does this mean that they will always need to disclose their offence(s)?

No, not necessarily. The length of time that your client may need to disclose their offence(s) will depend on the sentence or disposal that they received and the type of work for which they intend to apply. The ROA does not take into account the nature of the offence. The only circumstances in which a sex offender may need to disclose their conviction(s) indefinitely are:

  • If they received a prison sentence of more than four years for the offence(s)
  • If they received a public protection sentence
  • If they received an indefinite sexual offences prevention order (SOPO)
  • If they are applying for a job that is exempt from the ROA

Does my client need to disclose fixed penalty notices (FPNs) or penalty notices for disorder (PNDs)?

FPNs and PNDs are on-the-spot fines issued by the police for very minor offences. If your client has paid a FPN or PND within the specified time limit, all liability for the offence is discharged and the offence does not form part of your criminal record. The Police National Computer does not, therefore, contain details of FPNs or PNDs and your client does not need to disclose them when applying for jobs or courses.

If your client has received an FPN for a motoring offence and has received points on their licence in addition to the FPN, they must disclose this to insurance providers if asked directly to do so.

If your client failed to pay an FPN or PND on time, they are likely to have received a court summons. If they accepted responsibility for the offence, whether in person at court or by post, or if they were found guilty, they will have a conviction which will (in most cases) form part of their criminal record.

In some cases where an FPN or PND has not been paid on time and has defaulted to court, the offence is not recorded as a conviction on the Police National Computer and remains a locally held record. If your client has failed to pay an FPN or PND on time and the matter has defaulted to court, it is best to ask them to apply for a subject access request after the court hearing to see how the matter was recorded.

Does my client need to disclose allegations, arrests, matters that resulted in no further action (NFA) or not guilty verdicts?

No. These are not findings or admissions of guilt and your client has no legal obligation to disclose such matters when applying for jobs or courses.

Some employers will directly ask for a declaration of allegations, arrests, NFAs or not guilty verdicts even though the applicant has no legal duty to declare such matters. If your client applies for a job that is subject to an enhanced DBS check this information may be disclosed at the discretion of the police where it is deemed relevant to the job, but there is still no obligation on the applicant to disclose this information.

I am referring my client to an employer/recruitment agency. Should I tell them about my client’s convictions?

If your client applies for a job and has been asked by an employer or recruitment agency to declare any unspent convictions they have a legal duty to do so.

You have no duty to disclose anything as the referring agent and you need to be very careful about doing so as your clients’ criminal record information is personal sensitive information under the provisions of the Data Protection Act. If you know that your client has been asked for a declaration and you know your client has lied, the best course of action is to have a conversation with your client and explain that making a false declaration about unspent convictions is against the law. Highlight the potential consequences of failure to disclose and explain that you (or Nacro) are able to help and support them with disclosure.

You could support the disclosure with risk assessment information that will help to inform the employer’s decision about suitability for the role. If you would like further advice about how to do this, please contact Nacro’s Employer Advice Service on 0845 600 3194 or employeradvice@nacro.org.uk.