Sometimes applicants for jobs conceal the fact that they have criminal convictions and other times, employees commit criminal offences (whether in the course of their work or not). What can an employer do in these situations? Here is a rundown of the key points to bear in mind when dealing with job applicants/employees with criminal convictions.
Pre employment screening
An employer can make an offer of employment conditional on satisfactory results of pre employment screening, particularly in relation to an individual’s criminal record. Some employers use a pre-screening agency to conduct a series of detailed checks (including the applicant’s criminal record) before confirming an offer of employment. It is essential that the consent of the applicant is gained first before engaging the services of an agency as sensitive, personal data will be disclosed as a part of these checks. If the offer of employment is conditional on the applicant having a clean criminal record, an employer may be justified in withdrawing an offer of employment if the checks show otherwise.
Duty to disclose criminal convictions?
If an employer does not conduct pre employment checks on a job applicant, what duty does an applicant have in disclosing criminal convictions themselves? Under the Rehabilitation of Offenders Act 1974 (“ROA”), a job applicant is not required to disclose details of a “spent” conviction. A conviction becomes “spent” after a rehabilitation period has passed since the date of the sentence of that particular conviction. The length of the rehabilitation time will be dependent on the seriousness of the crime.
Case law has shown that dismissing someone because they had failed to disclose a spent conviction would not constitute a fair reason. However if an individual secures employment by concealing a past conviction which is not “spent”, their subsequent dismissal is likely to be fair.
Are all professions covered by this exemption?
The ROA does not cover applications for admissions to professions such as solicitors and doctors. Therefore, applicants for these roles are required to disclose all criminal convictions even if they are “spent”. Similarly this exception does not apply to employment concerned with the provision of services or the supervision of training of young people under the age of 18.
Criminal offences in the workplace
If an employee is suspected of committing a criminal offence at work (such as theft or fraud), what should an employer do? An employer still needs to conduct a reasonable investigation and follow proper procedures before making a decision about suspending the employee or dismissing them with or without notice. Even if the misconduct is the subject of police enquiries, an employer should make his own enquiries and follow normal internal processes. Depending on the seriousness of the offence, it may be better to suspend the employee on full pay before making a decision to terminate the individual’s employment to allow time for an investigation to be completed.
Whether or not the dismissal is substantively fair or not will be dependent on whether the employer had a genuine and reasonable belief that the employee was guilty at the point of dismissal, not whether or not they had conclusive proof of the employee’s guilt. If an employee subsequently is acquitted of criminal charges, this would not be relevant as to whether or not the decision at the time was correct.
Failure to go through the three stages of the statutory disciplinary procedure could lead to a finding of procedurally unfair dismissal. However, if an employee commits a serious criminal offence at work (such as assaulting a fellow employee), it may be appropriate for the modified statutory procedure to be followed (dismiss the employee immediately, write to the employee after the dismissal has taken place and offer a right of appeal)
Criminal offences outside the workplace
What happens if an employee commits an offence outside the workplace? The main consideration will be whether the offence is one that makes the individual unsuitable for his type of work or makes it unacceptable to continue working with his colleagues. For example, if an individual holds the role of an accountant in an organisation and is convicted of fraud, it likely to be reasonable for the employer to dismiss him as a result.
Again, whether or not it is reasonable to dismiss an employee convicted of a criminal offence will depend on whether according to the “range of reasonable responses” test, it is legitimate for an employer to dismiss on the grounds of the particular criminal conviction. Matters to be taken into consideration would be: the level of seniority of the employee, the nature of their role, the type of conviction. If an employee is working with children, a criminal conviction particularly of a sexual nature a dismissal is more likely to be found to be fair.
Employee in Jail?
An employee should not be dismissed solely because a charge against him is pending or because he is absent for a short time as a result of being remanded in custody. However, obviously if an employee is imprisoned for a long time, that will by necessity frustrate the employment contract and therefore bring the employment relationship to an end!