Monthly Archives: February 2018

It wasn’t me Guv, honest!

SUMMARY: A vexed recurring question from employers, particularly those seeking to recruit new employees is “Can I ask the candidate about any previous criminal convictions?” The natural next question is, “What can I do if a candidate says they have a clean criminal record, but I find out this is untrue?” We address these questions below:



The current general principle is that ex-offenders should be rehabilitated into society. The Rehabilitation of Offenders Act 1974 facilitates this by allowing historic convictions to become “spent” and non-disclosable to employers if an ex-offender has not reoffended for a specified period of time following their original conviction.

The length of the rehabilitation period depends on the sentence imposed and NOT the nature of the offence committed. However, if a custodial sentence of over four years has been imposed, the relevant offence will always be disclosable.
However, in certain situations, the general “spent” principle does not apply. Roles covered by this exception fall into the following five broad categories:

1. Professions (e.g. medicine, law and accountancy);
2. Those employed to uphold the law;
3. Certain regulated professions (e.g. financial services);
4. Those who work with children, vulnerable adults and health services; and
5. Those whose work could mean they could pose a risk to national security.

In these cases, all convictions including “spent” convictions must be disclosed as part of assessing an applicant’s suitability for the role. In addition, those applying for such roles would qualify for checking under the Disclosure and Baring Services (“DBS”).


Even if the role is not covered by one of the exceptions listed above, as part of the recruitment process, the potential employer can still ask the candidate to voluntarily disclose information about their criminal record history.

However, the employer should be aware that the candidate is under no obligation to disclose “spent” convictions – if convictions are “spent,” the candidate can hold themselves out as having a “clean” criminal record.

Also, unless the role is covered by one of the exceptions listed above, there are limits as to whether the employer can request a formal DBS check. To overcome this limitation, employers had adopted a practice of requiring potential employees to make a Data Subject Access Request covering their criminal records and requiring disclosure of this, but this practice is now unlawful.


If a role is not covered by one of the exceptions listed above and there is no industry specific guidance, employers should exercise their independent judgement about employing a candidate with a current conviction.

Employers should not have a blanket ban on employing offenders, but should instead perform a risk assessment relevant to the sector, position and situation considering:

  1. Whether the conviction is relevant to the role in question;
  2. The seriousness of the offence;
  3. The length of time since the offence occurred;
  4. Whether there is a pattern of offending or other relevant matters;
  5. Whether the applicant’s circumstances have changed since the offending; and
  6. The circumstances surrounding the offence and any explanation offered by the applicant.


Unless the role in question is covered by one of the exceptions (when failure to disclose all current and “spent” convictions when asked will be a valid reason to withhold employment, or to dismiss if the applicant has taken up employment), a potential applicant cannot be prejudiced (i.e. not hired) for failing to disclose a “spent” conviction when asked about their criminal records history.

In addition, there is no obligation on a current employee to disclose a “spent” conviction when asked (even if there is a contractual requirement to disclose convictions), and dismissing an employee in these circumstance could give rise to an unfair dismissal claim (providing the employee has two years’ service).

However, if an applicant lies about the existence of a current conviction, and this comes to light in due course, an employer could attempt to terminate their employment for breach of trust and confidence.

If the lie becomes apparent shortly after the employee takes up employment, this trust and confidence argument is likely to be a safe one. However, if the employee has accrued a significant length of service, particularly if they have been employed for over two years, it may be outside the range of reasonable responses to dismiss in circumstances where the employee has demonstrated they are trustworthy and competent in the role.


Asking about a person’s criminal record or obtaining a DBS Certificate has the limitation that it is only accurate at the time the disclosure is made. If the nature of the role requires continuing disclosure, it is sensible for employers to include a contractual requirement for ongoing disclosure. This will not automatically make a dismissal fair if an employee commits a criminal offence and conceals it, but it may assist an employer to demonstrate that it acted reasonably if it later finds out that an employee failed to disclose a conviction, which calls into question their suitability for continued employment.

If you would like more advice about any of the issues raised in this article, please contact a member of our team on (01604) 871143.

Get GDPR ready with us


Couldn’t make it to our seminar on the 22nd February? Well, you haven’t lost out just yet! Keep an eye out for updates on our next seminar and get GDPR ready with us!

It is an acute focus on the mind to realise that there are under three months left before the General Data Protection Regulation (“GDPR”) becomes law in the UK on 25th May 2018.

What stage has your business reached in the process of operational readiness for GDPR? 

Zero Tolerance on Sexual Harassment?

size0Last year was a year of surprising developments in the field of employment law and it has also certainly been an encouraging year for women in the arena of work and working relationships with equal pay and sexual harassment setting the momentum for legal decisions and media frenzy.

From Prime Ministers to activists to law enforcement within the civil and criminal court system, a seismic change appears to be developing in the war against sex discrimination. Laws to protect, for the most part, women, from unlawful discrimination in the workplace are not new, the Equal Pay Act 1970 and the Sex Discrimination Act 1975 have been in place for over four decades.

This, therefore, begs the question, to what should we attribute this clear increase in the number of claims being brought against individuals, employers and even members of Parliament? Certainly the number of global high profile allegations against even the current United States President and Harvey Weinstein the movie mogul has arguably given women in the workplace the courage to come forward casting off the shackle of fear that such a stance could be career-defining for all the wrong reasons, or that the practice of sexual harassment within their particular workplace is so ingrained as to be institutional.

Closer to home, the abolition of Employment Tribunal fees has led to a 66% increase in the number of claims made in Employment Tribunals in the period of October 2017 to December 2017. No doubt some of these will be complaints linked to some form of sex discrimination.

Employers can either be directly liable for proven cases of sex discrimination or have liability imposed as a result of the actions of their employees where the employer is unable to demonstrate that they took all reasonable steps to prevent the conduct of the errant employee and there was nothing more they could have done. Given the current climate and appetite for seeking redress for unsolicited and unwanted conduct of a sexual nature, employers of any size are well advised to review their policies and procedures to ensure not only that there is an effective infrastructure in place to deal with allegations of this nature, but also that the issue of educating the workforce to have an appreciation as to the types of conduct that may be perceived by female and also male employees as undermining their dignity at work.

There should be regular periodic reviews of all relevant policies and procedures to ensure that there is sufficient knowledge of them in the workplace and that they remain effective. New employees should have dignity at work and awareness policies enshrined within onboarding and induction training to ensure that a full appreciation of the types of prohibited behaviour is gained. Employers must balance the right of an aggrieved employee to make allegations and to have the confidence that they will be effectively dealt with, against the right of the accused to also be confident that the process that follows will have the required level of investigative thoroughness to withstand objective scrutiny. In so doing a culture that promoted dignity at work will be woven into the fabric of working practices.

Give a little love to your business with FG Solicitors

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Love Your Business

At FG Solicitors we believe that loving your business is about giving it the best chance to succeed in growing its profitability, reputation and becoming a leader in its field.

When you think about what you love about your business it could be your client base, your exemplary products and services or your innovative approach to driving and developing the business, but what about the building blocks of the business?

No matter what you do or how you do it, loving your business starts with building excellent HR infrastructure, developing and nurturing a strong and dynamic workforce, and leading that workforce with confidence and efficiency.

How FG Solicitors can help

At FG Solicitors we are experts in employment and HR Law and Solutions. We offer a range of services for all sizes of business to help you LOVE your business all year round —

• Advice and Support regarding all employment law matters
• Business Health Check / Audit
• HR and Legal Awareness Training
• HR and Legal Consultancy
• Development and maintenance of HR Infrastructure
• Resolving Employment Disputes
• Health and Safety Review and Policy Development
• Corporate Immigration