The Rehabilitation of Offenders Act 1974 and DBS decisions: what every employer making disclosure decisions must understand
The Rehabilitation of Offenders Act 1974 is confirmed current as at 17 March 2026, with further changes flagged as yet to be brought into force. If you are making hiring decisions based on DBS certificates and you do not have a clear grasp of what this Act requires, the legal risk sits with you.
Most employers know the Rehabilitation of Offenders Act exists. Very few understand what it actually requires them to do when they are sitting with a DBS disclosure in front of them. That gap is where tribunal claims come from.
The Act has been in place for over fifty years, but its practical application to DBS disclosure decisions is still widely misunderstood. What follows is what you need to know.
What most organisations get wrong
In 18 years of running employment screening, the most common mistake I saw with DBS disclosures was employers treating the certificate as the end of the process rather than the beginning of a decision.
A DBS certificate comes back showing something. The employer sees the information and either panics and withdraws the offer, or ignores it entirely. Neither response is correct and both create risk.
The second mistake was employers not knowing which level of check they were entitled to request. I saw organisations running enhanced DBS checks on roles that did not qualify for them. That is not just a process error. It is unlawful.
The third mistake, and the one that created the most legal exposure, was taking spent convictions into account for roles where the Act applied. Employers who did not know a conviction was spent, or who did not understand what spent status meant legally, made hiring decisions that left them exposed to claims they had no defence against.
What the Rehabilitation of Offenders Act 1974 actually does
The Act gives individuals with criminal convictions the right to be treated as rehabilitated once a set period of time has passed without further offending. Once a conviction is spent, the person does not have to disclose it when applying for most jobs. An employer is not permitted to discriminate against them on the basis of it.
The rehabilitation period is determined by the sentence, not the offence. The current periods for adults are as follows.
One year for community orders. Two years for custodial sentences of up to six months. Four years for custodial sentences of over six months and up to thirty months. Seven years for custodial sentences of over thirty months and up to forty-eight months.
Custodial sentences of over four years generally never become spent, though changes brought in by the Police, Crime, Sentencing and Courts Act 2023 created limited exceptions for certain offences. This is one of the reasons the Act continues to carry a note that further changes are pending.
The Exceptions Order and when the Act does not apply
The Rehabilitation of Offenders Act does not apply to every role. The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 sets out specific positions and activities where fuller disclosure of criminal history is required. These are typically roles involving children, vulnerable adults or positions of particular trust.
For roles covered by the Exceptions Order, a standard or enhanced DBS check can be requested. That certificate will disclose spent convictions alongside unspent ones, subject to filtering rules. For roles not covered by the Exceptions Order, only a basic DBS check is appropriate. A basic check shows only unspent convictions. Requesting a standard or enhanced check for a role that does not qualify is unlawful.
What the filtering rules mean in practice
Even for roles covered by the Exceptions Order, not every historical conviction or caution will appear on a standard or enhanced certificate. DBS filtering rules mean that old and minor cautions and convictions are removed from certificates where they meet certain criteria, typically relating to the age of the individual at the time of the offence and the time elapsed since.
A certificate that appears clean does not always mean there is no criminal history. It means any history has either been spent, filtered or was never disclosable at the level of check obtained. Understanding which of those three things has happened is part of making a defensible decision.
For a detailed breakdown of what appears on each level of DBS certificate and what an employer is entitled to see, my post on the DBS Update Service covers the check levels and what each one discloses.
Making a decision when something does appear
When a DBS certificate shows a conviction or caution that is relevant to the role, the employer must make a considered decision. That means looking at the nature of the offence, how long ago it occurred, what the role involves and whether the information is genuinely relevant to suitability for that specific position.
A blanket policy of refusing to hire anyone with anything on their DBS certificate is not compliant. It creates legal exposure and is specifically what the Act's protections are designed to prevent for spent convictions in non-exempt roles. The decision, and the reasoning behind it, must be documented. Poor documentation of DBS disclosure decisions is one of the most consistent failures found at audit, including under BS7858, which I covered in my post on the most common BS7858 audit failures.
Charlotte in action
To give you a sense of what Charlotte can do on this topic, here is the question I put to her and the answer she came back with.
Question put to Charlotte: If a candidate's DBS certificate shows a conviction that appears to be spent, and the role is not covered by the Exceptions Order, are we allowed to take that conviction into account when deciding whether to offer them the job?
Charlotte's answer: No. If the conviction is spent and the role is not covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, the Act's protections apply in full. The candidate was not required to disclose it, and the employer is not permitted to discriminate against them on the basis of it. Taking a spent conviction into account in this situation could constitute unlawful discrimination and expose the organisation to an employment tribunal claim. The correct approach is to disregard it entirely and proceed with the assessment on all other relevant grounds.
Charlotte provides expert guidance based on 18 years of real operational experience in UK employment screening and vetting. She does not provide legal advice. For legal matters specific to your organisation, always consult a qualified solicitor.
The consequences of getting it wrong
Taking a spent conviction into account for a role covered by the Rehabilitation of Offenders Act is unlawful discrimination. An employment tribunal claim is the direct consequence, and the Act itself provides the legal basis for that claim.
Requesting a standard or enhanced DBS check for a role that does not qualify under the Exceptions Order is also unlawful. Section 56 of the Data Protection Act 2018 makes it a criminal offence to require an individual to hand over personal data obtained through a subject access request as a condition of employment. The same principle applies to obtaining DBS certificates for roles that are not eligible for that level of check.
Where a disclosure does appear and the employer fails to document the decision process, a negligent hiring claim becomes very difficult to defend if something subsequently goes wrong. The answer that a certificate was seen and a decision made is not sufficient. The file must show what was considered, what was weighed and who made the call.
Tribunal claims under the Equality Act 2010 can arise alongside ROA claims where a protected characteristic intersects with a criminal record decision. The exposure compounds quickly and the consequences can be substantial.
Frequently asked questions
What is the difference between a spent and an unspent conviction under the Rehabilitation of Offenders Act 1974?
An unspent conviction is one where the rehabilitation period has not yet passed. It must be disclosed when asked and an employer can take it into account. A spent conviction is one where the rehabilitation period has elapsed without further offending. For most roles, the individual does not have to disclose it and the employer cannot lawfully act on it.
Can an employer ask about spent convictions on a job application?
For most roles, no. If the position is not covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, asking about spent convictions is not appropriate and acting on the information is unlawful. For roles covered by the Exceptions Order, asking about spent convictions and conducting a standard or enhanced DBS check is permitted.
What is the Exceptions Order and which roles does it cover?
The Exceptions Order 1975 sets out specific positions and activities where the Act does not apply, allowing fuller disclosure of criminal history. It covers roles involving children, vulnerable adults and certain positions of trust. The list is amended by secondary legislation and was updated as recently as 2025. If you are not certain whether a role qualifies, check current eligibility before requesting a check.
What should an employer do when a DBS certificate shows a relevant conviction?
Make a considered, documented decision. Look at the nature of the offence, when it occurred, what the role involves and whether the information genuinely affects suitability for that specific position. Do not apply a blanket refusal policy. Record what was considered, who made the decision and why, and give the candidate an opportunity to discuss anything disclosed before any offer is withdrawn.
Does a clean DBS certificate mean a candidate has no criminal history?
Not necessarily. It means no disclosable information appeared at the level of check obtained. Some convictions and cautions are filtered from standard and enhanced certificates. Spent convictions do not appear on a basic check. A clean certificate reflects what the DBS is entitled to disclose for that role at that level, not an absolute assurance of no criminal history at all.
How Charlotte can help
The Rehabilitation of Offenders Act sits at the centre of every DBS disclosure decision. Getting it wrong does not require deliberate intent. It requires only a misunderstanding of what the certificate means and what the law says about how to use it.
If you use a vetting platform, HR system or recruitment tool, this is worth raising with your provider. Charlotte can be embedded into any authenticated software environment with two lines of HTML. No technical complexity. No data risk. Ask your platform whether Charlotte is something they offer or are considering.
If your organisation operates its own internal software or system, you can trial Charlotte directly. Software platforms and organisations with their own internal systems can access Charlotte free for seven days at https://vettinghub.co.uk/trial. One user. Full access. No commitment and nothing to cancel if she is not right for you.
Charlotte's monthly licence is £1,495. No setup fee. No per-user charges. No long-term contract. Access runs month to month.
Charlotte covers 65 specialist topic areas across pre-employment screening, vetting, compliance and risk. She is available every hour of every day, at the exact point screening decisions are being made.
DBS disclosure decisions carry legal consequences. Having access to clear, expert guidance at the exact moment a certificate lands on your desk is not a luxury. For most organisations, it is the thing that has been missing.
Graham Johnson is the founder of Vetting Hub and spent 18 years running one of the UK's leading employment screening companies. He was a BS7858 Certified Trainer.
