Employment Rights Bill

The government today published a new Employment Rights bill. In their manifesto, Labour stated they would provide “greater in-work security, better pay, and more autonomy in the workplace improve the lives of working people”. They have since been in discussion with businesses and trade unions about the details of the bill. These discussions seek to ensure the proposals lead to both a fairer working environment and greater productivity. 

This legislation is an opportunity to make the existing rights of people with criminal records in recruitment and employment enforceable.

The Rehabilitation of Offenders Act (ROA) sets limits on what information potential or current employers can collect and hold about someone’s criminal record. This relates to the right for people to move on from their criminal history. This right means that once your caution or conviction becomes spent, you don’t have to disclose it (apart from in certain exceptional situations).

Yet in practice, due to the complexity of the criminal records system, employers may collect data that you have a right not to disclose. Then employers use the information they should not be collecting to make decisions about recruitment or employment.  

It can be very difficult for people to challenge these decisions and prove that an employer used their data unfairly. So we are setting out three ways in which the new bill could better protect both businesses and people with criminal records. 

An automatically unfair basis for dismissal

The ROA clearly sets out the right for protection from being unfairly dismissed on the basis of a spent caution or conviction.

However, at present, people have to proactively challenge any such decisions via tribunals. Courts are generally supportive of claims of this kind. But taking such a case to tribunal demands resource and motivation, which can be hard – especially when a person has just lost their job.

If the legislation specified that a spent conviction was an automatically unfair basis for dismissal, people’s rights would be more enforceable and accessible in practice.  

Repercussions for employers using information on spent convictions/cautions illegally

Employers are generally not allowed to use information about a spent caution or conviction during the recruitment process (apart from specific exceptions).

However, due to the complexity of the criminal record system, employers can sometimes collect this data inadvertently through unclear questions or applicants over-disclosing. Or, if employers carry out internet searches on applicants, they may find information about a spent caution/conviction without realising it.

At the moment, whilst employers are not permitted to take account of this data in most situations, there are no repercussions for doing so. We think everyone (employers and applicants) would benefit from greater legal clarity here. We therefore recommend that it should be an offence for employers to use data about a spent caution or conviction.  

More protection for people with unspent convictions

Employers are permitted to exclude applicants on the basis of an unspent caution or conviction. However, Unlock believes that people shouldn’t be dismissed on this basis after they have been recruited.

This can happen where an employer chooses to not ask applicants about their criminal record, then ‘finds out’ about an employee’s criminal record at a later date. Or it can happen where an employer recruits a person whom they know has an unspent criminal record, but the employer employs them regardless. Then, once the person is employed, the employer ‘changes their mind’ about that criminal record and fires someone because of it. 

In both of these scenarios, the employer has decided that criminal record data is not relevant for the role at hand. Yet in both, the employer changes their mind and the employee is dismissed. Such changing decisions indicate that an employer does not have a robust, considered process in place for criminal records. Decisions like these leave people with criminal records in a precarious position even once they have secured work.  

Progress of the Employment Rights Bill

Unlock will be speaking with government and pushing for inclusion of the rights of people with criminal records at every stage.

We’ll share news on the progress of the bill, our recommendations and responses to consultations.

If you have any questions about our briefing or would like to discuss the issues we raise here, email policy@unlock.org.uk.