Spent Convictions Act 2016 – What it means and implications for employers

Specified minor convictions 7 or more years old will become known as “spent”. Applicants will no longer be obligated by law or general agreement to declare the conviction or circumstances relating to the conviction to potential employers.

As employers, when hiring new staff it is best practice to undertake thorough reference checks and background checks. However, employers should now be aware that the Criminal Justice (Spent Convictions) Bill 2012 was passed in the Dail in January 2016 and will become known as the Criminal Justice (Spent Convictions and certain Disclosure) Act 2016. The Act was explored to assist people with historic convictions who face barriers when seeking employment, third level education, training courses and accessing house and car insurance. It will also assist people who committed a minor offence as a teenager which still affects them as an adult, especially if they need to be Garda vetted for a position.

Specified minor convictions that are more than 7 years old will become known as “spent” and applicants will no longer be obligated by law or by general agreement to declare the conviction or circumstances relating to the conviction to potential employers. Minor offences include anything from a motor to a public order offence but more serious crimes such as sexual offences will not be “spent”. Any offences excluded from vetting disclosures under the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 because they are not relevant should also be spent convictions.

Under the legislation, convictions may be spent after 7 years:

• Convictions for certain motoring and public order offences received in the District Court, for which the sanction received was less than a 12-month custodial sentence or 24 months suspended sentence not subsequently revoked.
• One other conviction received in the District or Circuit Court, for which the sanction received was less than a 12-month custodial or 24-month suspended sentence not subsequently revoked.
• A number of exclusions and conditions apply; convictions for sexual offences are excluded from the scheme.

Moving forward, what does this mean for employers when hiring?

In the recruitment process, many employers have required applicants to declare any previous convictions on their application forms. Employees had the potential to be dismissed if it were discovered at a later stage that they had not declared any previous criminal convictions when requested to do so. This Act will now restrict employers from asking for such declarations and employees cannot be penalised for non-declaration of spent convictions.

Employers should treat job applicants who have criminal convictions or spent convictions in the same way as any other applicant. The applicant should be considered based on skills, qualifications and ability to do the job. 

Although there is a general clarification of what convictions will become “spent” there are many exceptions depending upon the type of work the job applicant is applying to do. Do remember that not all convictions have the ability to become "spent". It does not apply to any conviction for a sexual offence or offence tried in the Central Criminal Court.

For employers who are deemed to seek vetting disclosures for employees in accordance with the National Vetting Bureau (Children and Vulnerable Adults) Act 2012, spent convictions that comply with the Act will not be disclosed in vetting disclosure results. Unless the offence was prosecuted in the District Court, the individual was aged 18 or older when the offence was committed, and at least seven years have elapsed since the conviction.

Recent guidance from the Data Protection Commissioner indicates that individuals need only disclose convictions which may be of relevance to the job they are applying for, for example, a road traffic conviction in relation to a driving job. It is reasonable for employees not to disclose convictions they reasonably deem not relevant to the job on offer.

Given the increased restriction around the disclosure of prior convictions, employers may need to explore alternative methods of screening prospective employees. Always ensure references are received in verbal form as opposed to pre-written references. Also, check that you confirm the job title of the person giving the reference to ensure that the referee is not a former work colleague with no authority to give the reference. Ensure that your methods and format for conducting references are standardised for all applicants.