What do employers need to know about the new legislation?
Employers frequently question employees at the pre-employment stage in relation to whether they have any criminal convictions. Under this new legislation employees will no longer be obliged to disclose a previous conviction if that conviction is deemed “spent”.
When are convictions deemed spent?
In summary, a conviction is deemed “spent” once the following criteria apply:
- The person is a natural person and has attained the age of 18 at the date of the commission of the offence which is the subject of the conviction concerned
- Not less than 7 years have passed since the effective date of the conviction
- The sentence imposed by the court in respect of the conviction is not an excluded sentence. Excluded sentences are defined in the legislation and include for example a sentence imposed for a sexual offence by a court other than the District Court
- The person has served or otherwise undergone or complied with any sentence imposed, or order made by the court in respect of the conviction concerned.
No more than one conviction may be regarded as a “spent” conviction, except in certain limited circumstances.
Are there exceptions to the rule that a spent conviction does not have to be disclosed?
Yes, for instance, there is still a duty to disclose where “specified work” or “relevant work” are concerned. Both “specified” and “relevant” work are defined in the legislation. “Specified work” includes employment with a number of state entities and “Relevant work” includes various work and activities relating to children and vulnerable persons. Other than in limited circumstances involving certain minor offences, employees must disclose their conviction when carrying out such activities/work even if same would otherwise be deemed spent.
What should employers do next?
In general, employees are now legally entitled to withhold details of a prior criminal conviction where that conviction is deemed “spent”. The legislation provides that a person shall not incur any liability or be otherwise prejudiced in law because he/she did not disclose a spent conviction. In light of the foregoing, it seems clear that an employer cannot discipline an employee for failure to disclose a “spent” conviction.
