by Breda O'Malley March-16-2016 in Employment Law
After a number of years in the offing, the Criminal Justice (Spent Convictions and Certain Disclosures) Act, 2016 was signed into law in February of this year. The Act is scheduled to be commenced in April 2016, although the current political hiatus may delay its introduction. The Act will change what individuals are obliged to disclose to employers concerning prior criminal convictions.
What convictions can be regarded as spent?
The Act sets out that where a person aged 18 or older was convicted of an offence, and at least seven years have elapsed since the conviction, then the conviction can be regarded as spent. A spent conviction need not be disclosed, unless an individual is before a court.
The Act is limited in its application to one conviction only. An individual with more than one criminal conviction will not have any of their convictions treated as spent. Limited exceptions apply in this context, specifically where multiple convictions all arose as the result of a single incident, or occurred at the same time. Multiple convictions in the District Court for certain public order or road traffic offences may also be treated as spent.
A conviction for a sexual offence, an offence tried in the Central Criminal Court, or an offence resulting in a prison sentence of greater than 12 months will not be treated as spent convictions.
What is the effect of a spent conviction in the employment context?
An individual is not obliged to disclose a spent conviction in the course of applying for a job, or where successful in obtaining employment. The Act sets out that an individual must not be prejudiced in law for not disclosing a spent conviction.
State jobs
An individual who is offered, or enters into a contract of employment, to do “specified work” must disclose a spent conviction. Specified work relates to employment with a number of specified State entities in areas such as security, law and financial regulation, for example the Defence Forces, the Gardai, the Office of the Attorney General and the Central Bank.
Working with children or vulnerable adults
The situation is slightly different with regard to “relevant work”. Relevant work is defined as work where having access to, or contact with, children or vulnerable adults is a regular and necessary part of the work. In such circumstances, a spent conviction must be disclosed, 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.
Employers who are engaged in relevant work are required 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.
What does this mean for employers?
As part of recruitment process, many employers require applicants to complete self-declaration exercises stating whether they have any prior criminal convictions. Employees had the potential to be dismissed if it was discovered at a later stage that they had not disclosed criminal convictions when requested to do so.
Once commenced, the Act will restrict the scope of self-declaration by not requiring employees to disclose a spent conviction. Employees cannot be penalised for doing so.
Recent guidance from the Data Protection Commissioner indicates that individuals need only disclose convictions which may be of relevance to the role on offer, a road traffic conviction in relation to a driving job for example. Employees can feasibly not disclose convictions they reasonably deem not relevant to the job on offer.
Given the increased restriction around disclosure of prior convictions, employers may need to explore alternative methods of screening prospective employees.
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About the Author
Breda O'Malley
Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.