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The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) Order 2016 (the 2016 Order) has amended the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (the ROA Exceptions Order).
Under the Rehabilitation of Offenders Act 1974 (the ROA), job applicants do not have to disclose to potential employers any spent criminal records information - even when asked about this during the recruitment.
Roles exempt from the ROA
However, the ROA Exceptions Order requires job applicants to disclose unspent and spent criminal convictions (other than those which are filtered under the Disclosure and Barring Service (DBS) filtering rules) when applying to work in certain roles or professions. The ROA Exceptions Order specifies the various roles which are exempt from the ROA. It also allows employers to exclude job applicants from those occupations on the basis of their spent convictions and cautions, or their failure to disclose them.
Any work which amounts to regulated activity with children is exempt from the ROA. Regulated activity with children broadly includes:
any form of teaching, training or instruction of children;
any form of care for or supervision of children;
any form of advice or guidance provided wholly or mainly for children, if the advice or guidance relates to their physical, emotional or educational well-being;
moderating a public electronic interactive communication service which is likely to be used wholly or mainly by children;
driving a vehicle which is being used only for the purpose of conveying children and any person supervising or caring for the children; and
any work in a prescribed place which includes a school, a nursery, a children's hospital, a children's home, a detention centre for children, a children's centre or registered childcare premises.
To constiute regulated activity the above work must be undertaken frequently (once a week or more), intensively (four times or more in a 30-day period) or overnight (between 2am and 6am).
The 2016 Order will extend the reach of the ROA Exceptions Order so that it covered work which would constitute regulated activity if it was carried out more frequently.
The 2016 Order will also extend the ROA Exceptions Order to cover the appointment process for roles in the Independent Police Complaints Commission that will have contact with vulnerable adults or access to information about such adults or children.
The amendments which will be made by the 2016 Order may have limited impact in practice, particularly where the work is undertaken in a specified place. This is because, regardless of the frequency with which work is carried out, the definition of regulated activity is broad enough to catch the majority of roles. This allows those employers to carry out DBS checks on the majority of successful applicants and to ask questions about spent criminal convictions during the application process.
Further, the wording in the 2016 Order mirrors that already contained in the Police Act 1997 (Criminal Records) Regulations 2002, which permits DBS checks to be carried out on individuals who undertake work with children which would amount to regulated activity if it was carried out more frequently. Therefore, employers an already obtain criminal records information on individuals who are appointed to carry out regulated activity with children on an infrequent basis.
The amendment in the 2016 Order simply permits employers to ask applicants about their spent criminal convictions before they apply for a DBS disclosure. Nonetheless, any development which assists employers in their duty to safeguard and promote the welfare of children is a welcome one.