UK Supreme Court Encourages Second-Chance Employment

 

Jathan Janove, J.D. By Jathan Janove, J.D. April 12, 2019
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​A recent decision by the Supreme Court of the United Kingdom (U.K.) will make applying for jobs without disclosing prior multiple convictions easier for people with criminal records.

Before the ruling, applicants with criminal histories had to tell potential employers about prior multiple convictions and minor violations they incurred even as children.

"This is an important ruling that stands to affect many thousands of people with old and minor criminal records who have been unnecessarily anchored to their past," said Christopher Stacey, co-director of Unlock in Maidstone, Kent, England.

The 'Spent' Rule

In some instances, applicants with criminal histories do not have to report their criminal record to potential employers. The "spent" rule provides exceptions to the general rule that applicants must report their past convictions. In the U.K., a person convicted of a crime has a prescribed rehabilitation period, which depends on the seriousness of the offense. If he or she successfully completes that rehabilitation period, the conviction becomes "spent." This means that the individual doesn't have to disclose the conviction to a current or prospective employer. The spent rule's purpose is to give second chances and prevent old convictions from permanently impacting a person's reputation and career prospects.

The spent rule has exceptions. One involves serious offenses, such as violent or sexual crimes. Another applies to specified occupations, such as those involving care of children or vulnerable adults.

Multiple-Convictions Rule Was Disproportionate

A third exception, the multiple-convictions rule, applies to people with two or more convictions. In such circumstances, an applicant can be required by a prospective employer to disclose his or her criminal convictions.

But on Jan. 30, the U.K.'s Supreme Court stated that the multiple-convictions rule "cannot be regarded as a necessary or proportionate way of disclosing to potential employers criminal records indicating a propensity to offend."

The statement was in response to a case involving an applicant known as "P." In 1999, when she was 28 years old and homeless and had schizophrenia that had not yet been diagnosed, P stole a sandwich from a shop. She received a criminal caution. Three months later, she was convicted of stealing a book worth about $1.50 and subsequently failing to attend a court hearing relating to the theft.

Many years later, with no further offenses and her schizophrenia under control, P became qualified to be a teacher's assistant. But she could not find work, she believed, because she had to disclose her convictions on each job application. Since she had multiple convictions, she could not benefit from the spent rule.

The U.K. Supreme Court held that the multiple-convictions rule is "disproportionate" and "wrong in principle" and that the government should not apply the rule. The court added that requiring applicants to disclose to employers juvenile offenses is "an error of principle," though it stated it was not necessary to decide that issue on this appeal.

Simon McMenemy, an attorney with Ogletree Deakins in London, described the impact of this decision "as a significant change to the way criminal convictions are treated in the recruitment process."

The Supreme Court's decision "holds the promise of a fresh start for thousands of people who deserve a second chance," said Corey Stoughton, advocacy director of Liberty in London. "The government must finally reform this arbitrary scheme."

[SHRM members-only toolkit: Introduction to the Global Human Resources Discipline]

More Changes to Come?

McMenemy anticipates further developments in the law. "The Rehabilitation of Offenders Act 1974, which governs which convictions are disclosable, will certainly need amending." He added that amending the act may become part of a wider-ranging review of the criminal records disclosure regime, which has already been recommended by both the Parliamentary Justice Committee and the U.K.'s independent Law Commission.

McMenemy recommended that employers "keep abreast of changes in this area and take care when asking candidates about criminal convictions." He suggested that employers seek guidance from organizations such as the nonprofit National Association for the Care and Resettlement of Offenders regarding whether employees or applicants must disclose spent convictions. 

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