Most employers ask about criminal records on application forms, and many carry out Disclosure and Barring Service (DBS) checks before making a final offer.
The Rehabilitation of Offenders Act 1974 allows some criminal records to become ‘spent’ after a crime-free period. This means they are no longer disclosable – for example to employers – enabling people to move on and positively and contribute to society. For jobs working with children and vulnerable adults, spent criminal records must still be disclosed (until they become protected).
Because the law can be complicated and employers are rarely trained in this area, some employers ask questions about spent convictions when they shouldn’t. Sometimes employers are not aware that cautions and spent convictions can become protected, and ask about these too. For example, they may ask “have you ever had a caution or conviction?” We call these misleading questions.
Sometimes employers carry out DBS checks which are not appropriate for the role; these are sometimes known as ‘ineligible checks’. We call them ‘unlawful checks‘; carrying out a DBS check at a higher level than permitted can be a criminal offence and a breach of data protection laws, and leads to people with criminal records being denied jobs unnecessarily.
If you think an employer is asking a misleading question or has carried out an unlawful check, you can challenge it. The template letters below are designed to help you do this:
If you think an employer has asked a misleading question
Download template letter – misleading question (spent convictions)
Use this if: the job is covered by the Rehabilitation of Offenders Act, and the application form asks a question which may lead applicants to disclose convictions which are spent.
For example: a marketing role with a form that asks ‘do you have any cautions or criminal convictions?’
Download template letter – misleading question (protected convictions)
Use this if: the job is exempt from the Rehabilitation of Offenders Act, and the application form asks a question which may lead applicants to disclose convictions which are ‘protected’ (sometimes called filtered).
For example: a teaching role with a form that asks ‘do you have any cautions or criminal convictions?’
If you think an employer has carried out an unlawful check
Download template letter – job offer withdrawn because of ineligible check (spent conviction)
Use this if: you have applied for a role covered by the Rehabilitation of Offenders Act and had an offer of employment withdrawn, following a DBS check which disclosed a spent conviction.
For example: you applied for a job as a shop assistant, and the company unlawfully carried out an enhanced DBS check.
Download template letter – ineligible check
Use this if: a job application form suggests that a check will be carried out for a role that does not require it.
For example: an office assistant role at a business, asking for a standard or enhanced DBS check
Support our policy work
We rely on evidence and individual experiences to support our work challenging bad practice, and pushing for policy change. Find out how you can help us to drive change:
If you need help
Contact our helpline if you need to speak to an advisor about your criminal record, or if you need help to challenge an employer.
