Spent convictions in Scotland: what employers need to know

The employment of individuals with criminal convictions raises both legal and ethical issues.  The aim is to strike a balance between public protection and rehabilitation.

For certain roles, it is (or will be) mandatory for employers to seek information about convictions, and suitability to work with vulnerable groups – see our earlier blog here.

In other cases, what can – or can’t – employers ask about someone’s criminal history? And when does a conviction become “spent”?

What Is a Spent Conviction?

Under the Rehabilitation of Offenders Act 1974, individuals with certain criminal convictions are not legally required to disclose them to most prospective employers after a set period of time – once the conviction becomes “spent”. The aim of the Act is to support the rehabilitation of offenders by allowing them to move on with their lives, particularly in the job market.

Scotland operates its own system for dealing with spent convictions. While the Rehabilitation of Offenders Act applies across the UK, Scotland now has a distinct regime.

Shorter Disclosure Periods in Scotland

Under the Management of Offenders (Scotland) Act 2019, the length of time it takes for a conviction to become spent in Scotland has been reduced, meaning many people no longer need to declare old convictions as long as they meet the criteria.

The disclosure periods for adult offenders in Scotland are:

• Admonition or absolute discharge – spent immediately
• Fine – spent after 12 months
• Community Payback Order (CPO) – spent after 12 months (or the length of the order, whichever is longer)
• Custodial sentence of 12 months or less – spent after 2 years from the end of the sentence
• Custodial sentence of more than 12 months and up to 2.5 years – spent after 4 years
• Custodial sentence of more than 2.5 years and up to 4 years – spent after 6 years
• Sentences over 4 years – never spent (unless an exception applies)

These periods are halved for convictions committed when the individual was under 18.

When Can Employers Ask About Convictions?

In general, employers cannot ask about spent convictions unless the role is exempt under the relevant Order, and if asked, employees need not disclose such convictions.

Roles that are exempt include:

• Work with vulnerable groups (children or protected adults)
• Certain roles in the legal or financial professions
• Positions in law enforcement, the prison service, and some healthcare settings

In these cases, even spent convictions may have to be disclosed.

For non-exempt roles, relying on spent convictions can be unlawful – below, we consider what remedy an employee has.

Practical Guidance for Employers

1. Review Your Recruitment Materials

Ensure job applications and interview processes do not require disclosure of spent convictions unless the role is exempt. A good rule of thumb is to include a clear statement about your policy on criminal record disclosures and what is legally required.

2. Avoid Blanket Policies

Assess the relevance of convictions on a case-by-case basis – does the conviction genuinely impact the person’s ability to do the job safely and effectively?

3. Respect Confidentiality

If a candidate voluntarily discloses a conviction, treat this information with the utmost confidentiality and sensitivity. It should only be considered by those involved in the recruitment decision.

4. Keep Up to Date

The law in Scotland is evolving – see the imminent changes to the PVG scheme.  It is important to keep up to date with this tricky aspect of recruitment.

What Remedies Are Available to Candidates or Employees?

If a person is refused employment or dismissed because of a spent conviction, they could have a legal remedy depending on the circumstances but in many cases there may be no obvious remedy.  There is no specific employment tribunal claim which can be brought.

1. A court claim for breach of a statutory duty under the Rehabilitation of Offenders Act 1974 is possible, but likely to be an expensive option. It is very rare for such a claim to be raised.
2. Data Protection Breaches. If an employer obtains or uses information about spent or protected convictions improperly, this may amount to a breach of UK GDPR and the Data Protection Act 2018. The individual can lodge a complaint with the Information Commissioner’s Office (ICO) and may also be entitled to compensation for misuse of their personal data.
3. Unfair Dismissal. An employee with more than two years’ service who is dismissed because of a spent conviction (that they were not legally required to disclose) may be able to bring a claim for unfair dismissal before an Employment Tribunal. This remedy is not available to job applicants or employees with under 2 years’ service (unless there is another angle which can be pursued, such as an argument that the decision was discriminatory )

Final Thoughts

Employment can be a key part of someone’s rehabilitation and reintegration into society following a criminal conviction.  The law recognises this by offering protections for individuals with old or minor convictions; however the lack of an obvious legal remedy in some cases may undermine this protection.

Nevertheless it is important for employers to be aware of their obligations.

If in doubt, seek advice from our team of employment law experts at BTO.

This update contains general information only and does not constitute legal or other professional advice.

Douglas Strang, Legal Director: dst@bto.co.uk / 0141 673 2412