Employers often want to know whether a candidate has a criminal record, but in England and Wales there are real limits on what you can ask, what the candidate must tell you, and what you can do with the answer. Get it wrong and you risk breaching the Rehabilitation of Offenders Act 1974, data protection law, or discrimination law. Here is how it works.
Spent and unspent convictions
The Rehabilitation of Offenders Act 1974 lets most convictions become "spent" after a rehabilitation period. Once a conviction is spent, the person is generally treated as if it had never happened. For most jobs:
- you can ask about unspent convictions; but
- a candidate does not have to disclose spent convictions, and you must not refuse to employ someone because of a spent conviction.
The exceptions: roles where more can be asked
Certain roles are exempt from the 1974 Act (under the Exceptions Order), for example, work with children or vulnerable adults, and some regulated professions. For these roles you can ask about a wider range of convictions and carry out a higher-level criminal record check. Even then, a filtering system means certain old or minor cautions and convictions do not have to be disclosed.
DBS checks, and you must be eligible
Criminal record checks are run through the Disclosure and Barring Service (DBS):
- Basic checks (showing unspent convictions) can be requested for any role.
- Standard and enhanced checks (showing more, including spent matters) are only available for eligible roles, mostly those exempt from the 1974 Act.
Requesting a level of check you are not entitled to is itself unlawful.
Data protection
Information about criminal convictions is sensitive. Under the UK GDPR (Article 10) and the Data Protection Act 2018, you can only process criminal offence data where you have a lawful basis and meet additional conditions, usually you need an appropriate policy document and a genuine need. Don't collect it routinely "just in case."
Discrimination risks
Blanket policies of rejecting anyone with any record can be indirectly discriminatory, because some groups are more likely to have convictions. A fairer approach is to consider whether a particular conviction is genuinely relevant to the specific role, and to give the candidate a chance to explain.
Practical approach
- Ask only what the role justifies, for most jobs, unspent convictions only.
- Run the correct level of DBS check, and only if eligible.
- Consider convictions on their relevance to the job, not as an automatic bar.
- Handle any disclosure confidentially and lawfully.
Key takeaways
- You can usually ask about unspent convictions; spent ones generally need not be disclosed (Rehabilitation of Offenders Act 1974).
- Exempt roles (e.g. working with children or vulnerable adults) allow more questions and higher-level DBS checks, but only if eligible.
- Criminal record data is sensitive, handle it under the UK GDPR (Article 10) and DPA 2018.
- Avoid blanket bans, which can be indirectly discriminatory; judge relevance to the role.
Sources
- Rehabilitation of Offenders Act 1974 (and the Exceptions Order)
- Disclosure and Barring Service (DBS) check levels and eligibility
- UK GDPR Article 10 and Data Protection Act 2018 (criminal offence data); Equality Act 2010
--- This article is general information about the law of England & Wales as at 2026, not legal advice. For advice on your circumstances, consult a qualified solicitor.