Hiring a new employee can be difficult enough without having to think about whether the candidate you are considering has been in trouble with the law.
When a business is in the process of choosing and hiring a new employee, more often than not if a candidate declared that they had a previous conviction, the employer is likely to be put off and either find someone else or refuse them the job. However, what some business owners are not aware of is that this could be against the law.
Unless your company requires a DBS check and the candidate is deemed not suitable for the role, you can’t discriminate against someone who has previously had a conviction or caution when it is classed as ‘spent’.
This essentially means that if a candidate had a conviction and served their sentence, it can be effectively ignored after a specified amount of time. The amount of time for rehabilitation depends on the sentence imposed, not on the offence.
However, there are some clauses:
- If someone has served a sentence of over 4 years, they do not qualify for a rehabilitation period and therefore you are within your right to refuse the job offer.
- If the sentence is less than 4 years, the conviction will become ‘spent’, meaning there is a rehabilitation period and you cannot refuse the job offer.
- For a custodial sentence between 0-6 months the rehabilitation period is 2 years, for 6-30 months it is 4 years and from 30 months – 4 years it is 7 years.
- For non-custodial sentences including community service and a fine, the rehabilitation period is 1 year (after the community order is served) and (1 year from the date of conviction).
- The rehabilitation period is halved if the candidate was under 18 when they were convicted.
- A conviction only becomes ‘spent’ after the rehabilitation period is over and therefore it is only against the law to refuse the candidate then.
- Simple cautions become ‘spent’ immediately; conditional cautions become ‘spent’ after 3 months.
It is important that as a business owner, you stay neutral in your decisions when hiring new employees. If a candidate has a conviction but it is classed as ‘spent’ then be aware that they are not legally obligated to inform you of this.
It is however always recommended that when you do decide on a candidate, you make sure the process is done correctly.
If you do require a DBS check you must always declare it to the applicant. This will help prevent them wasting their time by applying and your time by accessing their application.
As a company, it is important that you provide equal opportunities for all applicants. It is important to remember that everyone has a past and can make mistakes; it’s how they redeem themselves that is crucial.
If someone with a criminal background applies for a role it is vital you give him or her a fair chance.
- You won’t know their offence or the reasons behind their conviction; don’t judge a book by the cover.
- They could be an asset to your company and be an incredibly hardworking person ready to turn their life around.
- Just because they have been convicted or had a caution doesn’t mean they wouldn’t have the skills or talent to perform well in the role.
Screening is an important element of the recruitment process, the outcomes of which should be taken in to account.
However, if they are eligible to apply, the conviction is spent or the offence was minor, decisions should be made based on their application and interview not so much on the candidate’s past.
Article by: Simon Houlton – CEO – IScreenYouScreen
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