A new law gives employees the right not to disclose to employers minor criminal convictions that meet certain criteria for being ‘spent’ – criteria that could well be widened in future years, following similar UK legislation, according to Loughlin Deegan of ByrneWallace, solicitors.

The Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 came into operation on 29 April 2016. The purpose of the Act is to clear the criminal record of any person who was convicted of certain types of minor offences, provided that seven years have passed since the date of the conviction. Such a conviction will be regarded as a “spent” conviction.

Until this year, Ireland was unusual among EU countries in not having a mechanism by which convictions could eventually be removed from a person’s criminal record. The Minister for Justice and Equality has estimated that 85% of all criminal convictions will eventually become spent as a result of this legislation, making it a significant development for the rehabilitation of offenders.

The Act of 2016 has a specific application in the employment context. It gives employees a right to lie about spent convictions. This right will arise where an employer asks a person – an employee or a candidate for employment – if he or she has ever been convicted of a criminal offence. If that person has been convicted of an offence that has become spent, then the person is entitled to answer by saying that he or she has no criminal convictions.

This right is provided in section 6 of the Act, which says that “the question shall be regarded as not applying to the spent conviction and the person may respond accordingly”. Furthermore, “the person shall not incur any liability or be otherwise prejudiced in law because he or she did not disclose the spent conviction or the circumstances [of] that conviction”.

Employers may wish to consider whether or not their recruitment processes comply with the Act of 2016. Employers who ask candidates to disclose criminal convictions should make it clear that spent convictions do not need to be disclosed in any reply.

The legislation may cause a practical problem for employers. A person might fail to disclose an unspent conviction and, if that failure is discovered, might explain such a failure by saying that he or she mistakenly believed that the conviction was spent. An employer who subsequently finds out about that conviction may find it difficult to establish whether or not the mistake was genuine.

Right to Lie

The provision of a “right to lie” might be seen as a radical departure from the general principles of employment law. These principles normally require an employee to act with a high level of honesty towards his or her employer.

However, this right is already well-established in law. The Children Act 2001 contains a provision that allowed people to lie about certain convictions for offences committed while they were under the age of 18 years. Such offences become spent after only three years.

Under the Act of 2016, the right not to disclose a spent conviction does not apply to persons working with (or wishing to work with) children or vulnerable adults. Such persons will continue to be obliged to disclose all criminal convictions.

Similarly, the right does not apply to persons who work (or who wish to work) for certain employers. These include An Garda Síochána; certain of the departments and offices of the State concerned with security, defence and criminal justice matters and certain roles that relate to financial services.

Only Minor Offences

There are a number of provisions in the Act that ensure that only convictions arising from relatively minor offences can become spent. Certain types of more serious offences will never become spent.

These include a conviction for a sexual offence; a conviction that led to a sentence of imprisonment of more than 12 months (if time was served in custody) or a sentence of more the 2 years (if the sentence was suspended); or a conviction for an offence so serious that it can only be tried in the Central Criminal Court.

In general, a person can only benefit from the legislation if he or she only has not more than one conviction. If a person has more than one conviction, none of those convictions will ever become spent.

There are exceptions to that general rule. Any number of convictions for minor public order offences and minor traffic offences will be regarded as spent after seven years have passed.

Employer Dilemma Removed

While the ‘right to lie’ provided by the Act may cause disquiet for some employers, others may welcome it. Until now, some recruiting managers were unsure about how to react when a candidate for employment disclosed an old conviction.

On the one hand, such a recruiting manager may have wanted to be lenient towards a person who committed an indiscretion in his or her youth, but has long since reformed. On the other hand, the recruiting manager may have worried about being criticised for recruiting a convicted criminal.

The Act of 2016 resolves that quandary by removing spent convictions from the category of matters that a recruiting manager may consider. Even if the candidate disclosed the spent conviction – which he or she is not obliged to do – the recruiting manager should disregard it.

UK Experience

Lessons may be learned about the likely practical impact of this legislation from the experience of the UK. Similar laws have been in place there for more than four decades. The Rehabilitation of Offenders Act 1974 applies in England, Wales and Scotland and similar provisions apply in Northern Ireland.

The Act of 1974 (as amended in 2012) now requires convictions to be regarded as spent after a period of time that varies with the seriousness of the offence. In many cases, that period is much shorter than the equivalent period in Ireland. The UK legislation is more forgiving of offenders than its Irish counterpart.

For example, a conviction that led to a custodial sentence of up to four years can be regarded as spent under the UK Act, whereas in Ireland a custodial sentence of more than 12 months will never be regarded as spent. This may provide a hint about the future direction of the Irish legislation.

The Irish Act of 2016 has already been criticised by the Irish Penal Reform Trust for not doing enough to rehabilitate offenders. The Trust believes that more serious offences than are currently encompassed by the Act of 2016 should be eligible to become spent. The Trust also believes that people convicted of multiple offences should be eligible for the benefits of the legislation. If the Act of 2016 is seen to be working well, such amendments could well be made in the future.

Few Redress Mechanisms

The Act does not provide any express redress provisions for employees whose rights under section 6 have been infringed. Where employees with more than 12 months’ service are later dismissed because their employer learns of a spent conviction, it would appear that those employees would have a case to make under the Unfair Dismissals Acts 1977 to 2015 that their dismissals were unfair.

However, a person who is refused employment because a potential employer learns of a spent conviction – or who is dismissed for that reason during the first 12 months of employment – does not have any clear avenue of redress.

This lack of a remedy may reignite a debate that occurred some years ago about whether the Employment Equality Acts 1998 to 2015 should be amended to include a tenth ground of prohibited discrimination, namely discrimination on grounds of having a spent criminal conviction.

Given the ongoing need to balance the desire of society to rehabilitate offenders and the right of employers to protect themselves from being forced to recruit dishonest employees, it is unlikely that the Act of 2016 will be the last word on the subject of spent convictions.

This article is republished with permission from IRN (published in IRN 22 9 June 2016).