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Recruiting with convictions

Summary

 Employers will no longer receive information on some ‘spent’ convictions

  • A new category of conviction has been introduced – protected conviction
  • The NHS Scotland Application Form has been amended to accommodate the changes
  • There is no change in a requirement to perform a PVG or Police Disclosure Check
  • Hiring managers can continue to discuss conviction details for unspent convictions and spent convictions listed on Schedule A1.

The purpose of this briefing is to provide guidance to NHS Greater Glasgow and Clyde (NHSGGC) hiring managers on reforms to the disclosure of criminal records and how these reforms will affect the disclosure of certain categories of criminal convictions during the recruitment process.

The legislative changes have been made by Disclosure Scotland on behalf of the Scottish Government to the Rehabilitation of Offenders Act 1974, and NHSGGC Hiring Managers are asked to note the following changes with immediate effect:

 

Spent convictions

A spent conviction is a criminal conviction that under the Rehabilitation of Offenders Act 1974 can be treated as 'spent' - ignored or forgotten - after a certain length of time.

As most posts in the NHS were exempt from the Rehabilitation of Offenders Act 1974 prior to the legislative changes, we were legally entitled to ask applicants to disclose all convictions regardless of whether they were spent or not.  

The changes now mean NHS Boards may no longer be entitled to be made aware of any ‘spent’ conviction information, which prior to the new rules would have been provided by job applicants and on a Disclosure certificate.

Following the rehabilitation period of a conviction (outlined in appendix 3) a conviction becomes ‘spent’.  Although the conviction has become ‘spent’, the Rehabilitation of Offenders Act dictates that some conviction information should remain on a Disclosure Scotland PVG scheme membership or Police Act Disclosure due to the seriousness nature of the offence. 

These ‘serious’ offences are listed in Schedule A1 and Schedule B1:

  • Schedule A1 is a list of offences which must always be disclosed
  • Schedule B1 is a list of offences which are to be disclosed subject to rules

Rehabilitated offenders with a ‘spent’ conviction listed on Schedule B1 can apply to a Sheriff to have their spent conviction removed after a period of time:

  • 15 years, if they were 18 or over at the date of conviction
  • 7 years and 6 months, if they were under 18 at the date of conviction

 

Protected convictions

A new category of conviction has now been introduced known as a ‘protected conviction’. A person’s conviction is a protected conviction if:

  • It is a spent conviction; and
  • It is not a conviction listed in Schedule A1 or B1.

As protected convictions are categorised as a ‘less serious’ conviction, these convictions are no longer required to be shown on Disclosure certificates.

 

NHS Scotland application form

Part B (declarations) of the NHS Scotland Application Form has been amended to advise job applicants of the legislative changes in regards to criminal conviction information they are now legally required to disclosure, as part of an application for employment (paid or voluntary).

This means that under the new rules, the application process for a job will no longer require individuals to disclose ‘spent’ convictions.

The changes also impact on what information is released on a Disclosure certificate relating to either the PVG Scheme membership or a Police Act Disclosure.  The certificate issued by Disclosure Scotland will no longer contain all spent convictions (the certificate will not contain protected convictions).

NHS Boards are also no longer entitled to ask candidates at recruitment application stage, about ‘spent’ convictions.

Whilst these changes to the existing arrangements are now in place there is no change to our current requirement to carry out criminal record checks as part of the pre-employment checks for candidates offered a post within NHSGGC.

For posts not requiring a Disclosure Scotland PVG scheme membership / Police Act Disclosure - a separate Criminal Conviction Declaration Form has now been introduced and given to preferred candidates for whom a PVG membership or Police Act Disclosure is not required.  This will capture any relevant and disclosable criminal convictions in line with the new legislation that would previously have been declared on the application form.

Scottish Ministers want to strike a balance between protection of the public and vulnerable groups and the rights of individuals not to have to disclose routinely certain ‘spent’ convictions. Public protection still remains at the forefront of the system of PVG Records and Police Act Disclosures by ensuring certain very serious spent convictions and other categories of conviction deemed appropriate will always be disclosed.

 

Frequently asked questions (FAQs)

Can I ask the applicant about their criminal history?

You can ask an applicant about their criminal history, however, legally the applicant has the right to only tell you about any unspent convictions or spent convictions which are not protected.

What if the candidate discloses information about a protected conviction?

It is encouraging that the applicant is being open and honest during the recruitment stage, however you must not make any decision based on the information they have disclosed to you.  Making decisions based on a protected conviction will be contravening the Rehabilitation of Offenders Act 1974.

Will NHSGGC still perform a PVG / Disclosure check?

These changes do not affect the requirement to perform a PVG / Disclosure check.  The Recruitment Service will continue to carry out this essential pre-employment check prior to any unconditional offer of employment.

Will NHSGGC be receiving less criminal history about their prospective employees?

All orgaisations in Scotland that use the PVG membership scheme or those that request Police Disclosure Act will receive relevant criminal history information, as dictated in the following Acts:

  • the Rehabilitation of Offenders Act 1974
  • the Police Act 1997
  • the Protection of Vulnerable Groups (Scotland ) Act 2007

The primary change that has come into effect is the removal of some ‘spent’ convictions – these convictions are now referred to as ‘protected convictions’ and will not be disclosed to an employer.

Why did the application form need to change?

To minimise the risk of an applicant disclosing spent conviction information, it was agreed by the NHS Scotland HR Directors group (with legal input from NHS Scotland’s Central Legal Office) that the national application form must be amended to accommodate the changes to the Rehabilitation of Offenders Act 1974. 

What categories of staff does this affect?

The legislative changes outlined in this document are applicable to all NHS Scotland health boards as well as all public and private sector employers in Scotland. These changes have been implemented with immediate effect and are applicable to all posts, paid and voluntary.  This includes: substantive, fixed term, temporary, bank, modern apprenticeships, honorary appointments etc.

The role does not require PVG scheme membership or Police Act Disclosure; will NHSGGC still obtain criminal history information?

As part of their pre-employment checks, preferred candidates that do not require PVG scheme membership or a Police Act Disclosure will be asked to complete a Criminal Conviction Declaration Form. This will capture any relevant and disclosable criminal convictions in line with the new legislation that would previously have been declared on the application form.

Where can I obtain further information or clarification about these changes?

In the first instance, please contact the Recruitment Service on 0141 278 2700 or email [email protected].

 

Examples of conviction scenarios

Scenario 1

A person is convicted of fraud and receives a conditional discharge.  The offence occurred 3 months ago.

The rehabilitation period for a conditional discharge is 1 year.  Therefore this conviction is unspent and will appear on a PVG scheme membership or Police Act Disclosure.

Scenario 2

A person was convicted of rape and received a 4 year prison sentence.  The offence occurred 12 years ago.

The rehabilitation period for a sentence of imprisonment (over 6 months) is 10 years.  Therefore this conviction is spent.  However, as the offence is listed in Schedule B1, it will appear as a spent conviction on a PVG scheme membership or Police Act Disclosure.

 

Scenario 3

A person was convicted of torture and received a 5 year prison sentence.  The offence occurred 33 years ago.

The rehabilitation period for a sentence of imprisonment (over 6 months) is 10 years.  Therefore this conviction is spent.  However, as the offence is listed in Schedule A1, it will appear as a spent conviction on a PVG scheme membership or Police Act Disclosure.

Scenario 4

A person was convicted of affray and received a fine.  The offence occurred 18 years ago.

The rehabilitation period for a fine is 5 years.  Therefore this conviction is spent.  The applicant has applied to a Sherriff to have their spent conviction removed (as the conviction is listed in Schedule B1) and it was agreed that the conviction is now protected.  Therefore the conviction will not appear on a PVG scheme membership or Police Act Disclosure.

Scenario 5

A minor was convicted of theft and received a fine.  The offence occurred 4 years ago when the minor was 14 years old.

The rehabilitation period for a fine (for a minor) is 2½ years.  Therefore this conviction is spent.  The applicant has applied to a Sherriff to have their spent conviction removed (as the conviction is listed in Schedule B1).  The Sherriff has denied the request, as a spent conviction (listed on Schedule B1) can and only become protected after 7½ years from when the minor was convicted.  Therefore the conviction will appear on a PVG scheme membership or Police Act Disclosure.