Burnetts' employment law solicitor Natalie Ruane provides guidance on the legal position regarding employing someone with a criminal conviction.
With the employment future of the ex Sheffield United footballer Ched Evans still in the headlines, we thought that it might be useful to provide some guidance on the legal position with regard to employing someone with a criminal conviction and what to do if someone is convicted of an offence whilst working.
It may come as a surprise to some but there are very few circumstances in which an applicant is legally obliged to tell you if he or she has a conviction.
Most employers ask the question on their application forms but if an applicant fails to answer the question, the employer may never find out unless the post that is being applied for is classed as exempt under the Rehabilitation of Offenders Act 1974, particularly if the conviction is spent at the date of application.
Earlier this year, we covered the fact that the government had introduced legislation which changed (and in most cases reduced) the period during which convictions were deemed to be live: http://www.burnetts.co.uk/publications/factsheets/changes-to-rehabilitation-periods
For most employers, that means that only relatively recent convictions will be revealed.
Some employers will be able to verify what the applicant has said on the application form by applying for disclosure from the Disclosure and Barring Service (previously known as the Criminal Records Bureau) but not all employers are able to access those services. This means that most employers have to trust in the accuracy of what an employee has included on the application form. However, it is worth remembering that the same is true of almost all of the information included on such forms including any descriptions of an applicant’s previous role.
Discovering an error
Many employers class including inaccurate information on an application form as gross misconduct. However, whether the employer can actually use that inaccuracy to dismiss generally depends upon the nature of the error; whether it can be shown that there was a deliberate intention to mislead; and how much service the employee has accrued before the error is identified. It also often depends upon the exact question asked on the application form and the answer given. In the case of an error in relation to the disclosure of a criminal conviction, there is the additional complication of checking whether, at the time that the information was given by the applicant, the conviction was spent or not.
Employing someone who discloses a conviction
Although there are some jobs that people can’t legally take up if they have a criminal conviction, the whole point of the Rehabilitation of Offenders Act 1974 is that the majority of jobs do not fall into that category. Most employers cannot, therefore, refuse to employ someone just because the applicant has a criminal record.
Instead, employers are supposed to assess whether the criminal record is relevant or not. This includes considering the precise nature of the offence(s) as well as the applicant’s attitude to the offending. No two offences are exactly alike. Burglary can range from an incident involving great loss and indifference on the part of the offender compared to someone who is genuinely sorry at having stolen something to eat.
The main focus should be on whether the offence has an impact on the duties the job would entail. For example is an offence of criminal damage in some one’s teens really relevant to whether or not he or she would make a good chef 20 years later?
Conviction during employment
Although many disciplinary policies state that conviction of a criminal offence will be considered as an act of gross misconduct, employers should remember that the Acas guidance on disciplinary and grievance matters suggests:
"An employee should not be dismissed or otherwise disciplined solely because he or she has been charged with or convicted of a criminal offence. The question to be asked in such cases is whether the employee’s conduct or conviction merits action because of its employment implications."
A conviction should therefore be treated with some caution. Dismissal shouldn’t be the first response.
A fair process involves consideration of the offence, whether it is relevant to the role that the employee is undertaking and what, if any, impact there will be on the business/organisation as a result of the conviction. Even if a conviction results in prison time, the Acas guidance suggests that the employer should consider if the employee's job can be held open. The guidance also highlights that if a conviction has led to the loss of a licence so that continued employment in a particular job would be illegal, employers should consider whether alternative work is appropriate and available before dismissal will be fair.
What employers need to bear in mind is that, when the issue of criminality arises, the rules on what constitutes a fair dismissal still apply whatever the nature of the alleged offence. If the offence is committed at work or is particularly emotive it can be difficult to maintain the required level of neutrality when considering what course of action to take. Employers in that position or who need advice on any of the issues raised in this bulletin should contact Natalie Ruane at Burnetts Solicitors on 01228 552222 or by email at firstname.lastname@example.org
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Monday 24th November 2014