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”).
ASKING ABOUT PREVIOUS CONVICTIONS
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.
WHAT IF A CANDIDATE DISCLOSES A CURRENT CONVICTION?
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:
- Whether the conviction is relevant to the role in question;
- The seriousness of the offence;
- The length of time since the offence occurred;
- Whether there is a pattern of offending or other relevant matters;
- Whether the applicant’s circumstances have changed since the offending; and
- The circumstances surrounding the offence and any explanation offered by the applicant.
WHAT IF A CANDIDATE FAILS TO DISCLOSE A CURRENT CONVICTION?
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.
CONTINUING OBLIGATION TO DISCLOSE
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.