Employee’s disclosure of criminal convictions

Why is the subject of employee’s criminal convictions important?

Common questions I get asked in practice about employee’s criminal convictions are:

• Are individuals are obliged to disclose their criminal record to current or prospective employers?
• If so, which convictions should they disclose?
• Are employers justified in taking action (for example choosing not to employ) due to criminal convictions?
• If, so which criminal convictions justify which action?

Essentially, the answers to these questions to depend to some extent on the area of work where that individual is engaged to work in.  For example, it is important that people with certain convictions do not undertake certain types of work (for example, ensuring that those convicted of child sex offences do not have access to children).

What is the basic position?

The law in this area tries to maintain a balance between an individual’s right to privacy and an employer’s right to protect vulnerable groups of individuals.

There is no overriding obligation on an individual to voluntarily disclose their whole criminal record to a current or prospective employer.

So, how can an employer find out about an individual’s full criminal record?  The most obvious way for an employer to find out if a person has a criminal record is to ask them voluntarily. The drawback here is that there is no obligation on a job applicant, employee, worker, or volunteer to voluntarily disclose their criminal record to a current or prospective employer.  Therefore, employers have to rely on the honesty of the individual.

However, where a job or vacancy is covered by an ‘exception’, an employer may be able to access official records of an individual’s criminal record, in order to get full and accurate details of that individual’s criminal record. This is done through the Disclosure and Barring Service (DBS).

But, what must and must not be disclosed? What can and can’t be considered by the employer?

Different types of convictions…

There is a difference in the types of criminal convictions that employers may have access to. These are known as ‘spent’ and ‘unspent’ convictions:

• An ‘unspent’ conviction is where an individual is still within their rehabilitation period. Their conviction should be disclosed by the individual to an employer in response to a request for details of their criminal record.
• A ‘spent’ conviction is where an individual has been convicted of a criminal offence but does not re-offend during their rehabilitation period and the period has therefore expired. Unless the exception (below) applies, the individual will then be entitled to hold themselves out as having a clean record. Therefore, they do not have to tell an employer about a conviction once it becomes spent.

What should and shouldn’t be disclosed?

Most ‘spent’ convictions do not need to be disclosed to a future or current employer, even where the employer makes a direct request for that information or that there is a contractual requirement for the individual to disclose their convictions.  However, there may be issues relating to the implied term of mutual trust and confidence triggered here if the individual is not truthful (see below).

There are however exceptions to this rule, as there are certain professional bodies and employers (such as solicitors, and those that work with children and vulnerable adults) that are permitted to request an individual’s full criminal record revealing all spent convictions; no matter how historic or minor the offence.

Generally, unspent criminal convictions should be disclosed by an individual voluntarily and would show up on a DBS check.

Can an employer rely on a conviction to take action?

Once an employer finds out about a criminal conviction they may wish to dismiss a current employee or refuse to offer employment to that particular applicant.  Is this lawful?

The answer will depend on the particular circumstances, for example:

• If the individual has a spent conviction, which comes to light before they are engaged by the employer, the employer may not refuse to engage them unless they fall within the exceptions order (i.e. working with vulnerable people).
• If the individual has an unspent conviction, which comes to light before they are engaged by the employer, the employer may decide not to engage them.
• If an employee is dismissed by an employer for a spent conviction, it will almost certainly be an unfair dismissal (provided that employee has the service required to bring an unfair dismissal claim and unless they fall within the exceptions order).
• If an employee is untruthful about a conviction (and was not entitled to conceal it); this could be seen as a breach of trust & confidence and lead to possible disciplinary action against the employee, which may lead to dismissal. Employers will need to be cautious if the employee has the qualifying service to bring an unfair dismissal claim in order to follow a fair procedure and establish a fair reason to dismiss.  However, this may be possible.
• If an employee later acquires a criminal conviction, employers should be careful not to have a knee-jerk reaction.  Employers should be mindful that just because an employee may be charged with a criminal offence whilst they are employed, this does not automatically justify dismissal.  Much will depend on the type of crime and the circumstances surrounding it, and in particular whether it means that they are no longer suitable for their role.

Best Practice

The best practice for employers, in circumstances where they are making their own judgement on the weight of an individual’s criminal record (i.e. they are not bound by sector-specific protocols or regulations), is that they should take into account the following:

• Whether the conviction is spent or unspent;
• Whether the conviction is relevant to the position in question;
• The seriousness of the offence;
• The length of time since the offence was committed;
• Whether there is a pattern of offending;
• Whether the applicant’s circumstances have changed the offending behaviour; and
• The circumstances surrounding the offence and the explanation offered by the individual involved.

Employers should not have a blanket ban employing ex-offenders. Employers with good recruitment policies are likely to have other means by which they can assess an applicant’s suitability, such as checking qualifications and taking up references.

Remember, employers can always make good use of probationary periods, and providing a clear job description will allow an employer to assess the suitability of an individual’s performance of the job in question.

If you would like any further advice on employee’s criminal convictions or any other aspect of employment law, please contact a member of our Employment & HR team.