Criminal records checks

Certain positions will enable the employer to apply for a Basic Disclosures check for the potential applicant from Disclosure Scotland. This is usually required when people are working regularly with children or vulnerable adults. The Security Industry Authority also carries out a criminal record check (in England) or Basic Disclosures check on anyone who applies for a security licence.

Criminal records checks should not be requested until a job offer is made, but you should make it clear, in writing, that the job offer is conditional upon a Basic Disclosures check.

You must be registered with Disclosure Scotland or use the services of an 'umbrella body' if you want to obtain Disclosure Scotland checks. A registration fee of £150 is payable.

Avoiding discrimination

Once you have received your copy of the Disclosure Scotland certificate, you can assess whether the candidate is suitable for the job. A Disclosure Scotland check will reveal previous convictions. Generally, under the terms of the Rehabilitation of Offenders Act (1974), someone convicted of a criminal offence who does not receive any further convictions during 'the rehabilitation period' becomes a rehabilitated person. Their conviction is regarded as spent - therefore after a certain period of time, you should treat the person as if the conviction had not happened.

In most cases where a position is not eligible for a Disclosure Scotland check you cannot:

• insist on being told about a criminal offence that is spent
• take into account offences which are spent

However, a conviction resulting in a prison sentence of more than 30 months can never be spent.

A person must disclose all convictions - including spent ones - if the job offered falls into an exempted category according to the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003, including:

• regular contact with children and vulnerable adults
• people applying for gaming and lottery licences
• work as a barrister
• police work
• posts relating to the administration of justice or financial regulation

Whether the conviction is spent or unspent, you should carefully weigh a number of factors, including:

• how long ago the offence was committed
• the candidate's age at the time
• the relevance of the offence to the job offered
• the penalty awarded
• whether the offence was isolated or part of a pattern of offending
• what is known about the person's behaviour before and since

People should not be unfairly discriminated against due to past convictions. You should also give the candidate a chance to explain if a check reveals adverse information about them.