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Hiring employees who may have criminal convictions

28 May 2019, at 9:30am

What is the law on criminal records and what information should you look for when screening job candidates?

Arecent study, conducted for the Scottish Centre for Crime and Justice, found that 11 million people in the UK have a criminal record and that 75 percent of employers admit to rejecting a job applicant once a criminal conviction is disclosed.

And for some there is good reason to be that selective. As a search of the web for “staff dishonesty in the veterinary profession” shows, the problem of criminality isn’t a new one. In 2010, an RCVS disciplinary hearing led to the removal of James Lockyear from the register for dishonesty. And there are numerous reports of veterinary practice managers being jailed for theft, including one, Della Barbour, who according to a BBC news article from 2012, stole £290,000 over five years from the Elm Veterinary Surgery in Plymouth; she was sent to prison for two years and eight months.

With this in mind, what is the law surrounding employees with criminal records, and what can employers do to ensure they are asking the right questions at the right time?

The law

According to Mark Stevens, a senior associate at law firm VWV, it’s important to note that an employer can obtain information on a person’s criminal record. “They can do so in one of two ways – either by asking the candidate or employee directly, or by requesting an official criminal record check by the Disclosure and Barring Service (DBS).

”The treatment of individuals with criminal records is set out in the Rehabilitation of Offenders Act 1974 (ROA 1974). This Act provides a system for the records of people with convictions to be cleared. Subject to certain exemptions, a person whose conviction is spent is entitled to hold themselves out as having a clean record – only “unspent” convictions need to be disclosed. However, even with unspent convictions, it is worth bearing in mind that an applicant may not disclose this information.

Mark advises that if an individual has a spent conviction and they choose not to disclose it when questioned, subject to certain exemptions, “they cannot be subjected to any liability or prejudice for their failure to disclose, and this would include an employer not hiring them. Failure to disclose a spent conviction is not a lawful ground for dismissal”. An employee dismissed on these grounds may bring a claim for unfair dismissal.

The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 identifies that in certain cases spent convictions should be disclosed. The Order sets out certain occupations, offices and professions where the disclosure of spent convictions can be required:

  • Professions such as medicine, lawyers, accountants, vets, chemists and opticians
  • Those employed to uphold the law, including judges and prison officers
  • Certain regulated occupations, including the financial services
  • Those who work with children and vulnerable adults
  • Those whose work could pose a risk to national security

If an applicant fails to disclose a spent conviction in these circumstances, an employer will have a valid reason for with-holding or withdrawing an offer of employment or dismissal.

Disclosure and Barring Service

As mentioned earlier, an alternative to asking an employee about their past is for an employer to obtain information on an individual’s criminal record via a DBS check, which will include all spent and unspent convictions and eliminates the need to rely solely on the voluntary disclosure of an individual.

There are two main types of DBS check: standard disclosure and enhanced disclosure. Mark reminds employers that they “should remember when considering requesting a DBS check that this can only be requested if the individual in question is to undertake a role set out in the Exceptions Order”.

He explains that “if a DBS certificate discloses convictions, employers should be careful not to respond in a knee-jerk way when deciding if the individual is suitable for a role.” His reasoning is based on a recent case where, in January 2019, the Supreme Court found that the way that criminal records were disclosed to employers infringed an individual’s right to private life: “It has been reported that the Supreme Court’s decision was that the criminal records disclosure scheme was disproportionate in certain respects – specifically in respect to the requirement that all previous convictions should be disclosed (regardless of how minor they might have been), where the person has more than one conviction, and also in respect to young offenders.

“The repercussions of this case remain to be seen – but it could lead to significant changes to the way that the DBS system works.”

As well as having a lawful reason for processing the data, an employer should comply with the data protection principles, which include making sure the processing is adequate, relevant and not excessive

Employers should always keep in mind that information on a person’s criminal record is personal data and cannot be processed unless there is a lawful basis for doing so. As well as having a lawful reason for processing the data, an employer should comply with the data protection principles, which include making sure the processing is adequate, relevant and not excessive.

An applicant has a criminal record

How should an employer react if a conviction, spent or unspent, is disclosed? Mark suggests that an employer’s response should depend on the individual circumstances – regardless of how the information is obtained.

“If the conviction is spent and the position applied for does not fall under the Exceptions Order, the employer may not refuse to employ the individual on the basis of the conviction. If the conviction is spent, but the position falls under the Exceptions Order, then an employer may refuse to employ the individual.

“When dealing with positions which fall within the Exceptions Order, due regard should be given to industry and sector specific guidance as this will often set out how an employer should proceed. If the conviction is not spent the employer may refuse to employ the individual, but again, appropriate regard should be given to any sector specific legislation.”

A current employee did not disclose

When looking at the issue from the perspective of an employee, Mark says that here too, “an employee is entitled to withhold a spent conviction, subject to the exceptions, and it is likely that if an employee with qualifying service is dismissed for this reason. the dismissal will be unfair”.

He adds that if a person has deceived their employer about a criminal record and they were not entitled to withhold the information, ie they have an unspent conviction or the exceptions to ROA 1974 apply, then the employer may terminate their employment contract for breaching the implied term of mutual trust and confidence.

But Mark offers a note of caution here: “Care should be taken where an employee has sufficient qualifying service to bring an unfair dismissal claim as an employer will need to show that dismissal was within the band of reasonable responses.” He says that in considering this, an employer will want to think about the employee’s performance record as well as whether or not the conviction was relevant or particularly serious

In summary

As can be seen from the recent research published and the legal considerations when requiring criminal records be disclosed, it may not always be appropriate for an employer to ask applicants about criminal convictions.

If an employer chooses to continue to ask for criminal records information in their application form, it should consider writing a detailed recruitment policy with a section on the recruitment of ex-offenders that explains how the suitability of candidates with a criminal record is assessed. This could include the nature of the offence, the relevance to the role applied for, how old the offence is and whether an individual’s circumstances have changed since the offence was committed.

Employers can also continue to reject applications on the basis of a criminal record without taking these steps. However, giving more thought to the situation may open up a wider range of suitable candidates for a role.