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Employing ex-criminals

Beverley Sunderland

According to Dr Andrew Henley, a criminologist at Keele University in a recent article for The Metro, 11 million people in the UK have a criminal conviction and a third of men and nine per cent of women will have been convicted of an offence by the age of 53. Contributor Beverley Sunderland, Managing Director – Crossland Employment Solicitors

But a YouGov survey commissioned by the Department for Work and Pensions in 2016 found that 50 percent of employers would not consider employing an ex-offender, regardless of the offence or sentence received.

Some people have a criminal record for one stupid mistake – texting whilst driving or speeding in a built-up area and injuring someone as a result. They are often still loyal and hardworking employees.

But there are also wider issues; those with criminal convictions usually cannot get entry visas to the USA and Australia which may be a problem for those working at an international level. Insurance premiums can be affected as well as their ability to apply for public office. These all need to be taken into consideration by employers if they are employing someone with a criminal record.

Criminal Records Checks
Not every employer can apply for a criminal record check on behalf of a new employee. A Disclosure and Barring Service (DBS) check can only be made by an employer for specific types of jobs and these will either be standard checks where ‘spent’ convictions (the less serious convictions) will not be disclosed (most professions) or an enhanced one for jobs such as working with children or vulnerable adults where spent convictions and other relevant information can be revealed by the police.

This can include the fact that a person was charged with an offence but acquitted. In 2009 the Supreme Court case of L v Commissioner of Police of the Metropolis in 2009 considered what else should be included in these enhanced certificates. The Court decided that the police must strike a balance between the interests of the employer and the individual’s right to their private life. Provided the information is relevant to the position applied for and strikes this balance, it is reasonable for the police to disclose it.

In July 2018 a teacher who was charged with rape, took his case to the Supreme Court claiming the police should not have revealed this on an enhanced DBS. The Supreme Court said that given the nature of his job, the disclosure was reasonable. However, the Supreme Court said that it raised wider issues about what employers are expected to do when information like this is revealed, as there will be an obvious assumption that the police are revealing an acquittal because they still believe him to be guilty.

Obligations to reveal criminal convictions
The Rehabilitation of Offenders Act 1974 was introduced to try and give offenders a ‘fresh start’ in life, by providing that all but the most serious convictions do not have to be disclosed after the passage of time. In England and Wales an adult custodial sentence of more than 48 months will never be spent but a prison sentence of 30-48 months is spent seven years after the sentence is served, whereas a fine is spent one year after the conviction.

Once a conviction is spent then the employee does not have to disclose it except if they are applying for a job on the ‘Exceptions’ list which includes the legal and finance profession, accountancy, healthcare, security and prison services, and working with children or vulnerable adults.

In May 2013 new ‘filtering’ rules were introduced so even if you are in a profession which is on the ‘Exceptions List’ certain convictions can be considered spent and do not have to be disclosed. Custodial sentences will always need to be disclosed but many other convictions that are more than 11 years old and where the employee was over 18 at the time, do not.

Protecting employees with spent convictions
An employer cannot refuse an employee a job or dismiss them because of a spent conviction. However, there is a fundamental flaw in this apparent protection, as an employee needs to have been employed for two years before they can bring this claim.

Common issues for employers
Employers cannot ask potential employees about their spent convictions, unless the employee has applied for a job on the Exceptions list. Furthermore, unless an employer asks an employee about any unspent convictions there is no obligation for the employee to disclose them so, always ask about unspent convictions on an application form. It is likely to be relevant for any company car insurance or travel restrictions. If the candidate reveals a conviction then consider what it was for, how long ago and how relevant it is to your business and balance this with their skills and experience.

Problems might come for an employer where they are not on a list of jobs that entitle them to a DBS check, but their customers insist on it. As an individual cannot ask for a DBS check on themselves, the only way around this is for an individual to make a subject access request under the Data Protection Act 2018 to the police.

Pressure from other employees may also be an issue in the event they find out about the conviction. If the employee has been there for over two years and the conviction is spent then this will be an automatic unfair dismissal. If it is not spent then dismissal might still be unfair if the employee is good at their job and the conviction irrelevant and does not impact on the safety and well-being of the other employees.

Grounds for dismissal?
Criminal offences committed outside of the workplace do not generally justify dismissal of an employee unless the offence is relevant to the role – for instance a lawyer or accountant convicted of fraud, or the employer being brought into disrepute – such as the media reporting that this person worked at the company.

Furthermore, an employee who is sent to prison does not, contrary to popular belief, automatically lose their job. There is no obligation to pay them whilst in prison but dismissal of an employee who receives a short custodial sentence might well be an unfair one if they have been employed for more than two years.. An employer will have to weigh up the length of sentence, the nature of the offence and the impact on the business. They will also have to follow a fair process if they are dismissed.

Other common issues include a lack of understanding on the part of employers about the difference in the burden of proof between the police and the ability to dismiss. Even though the police have decided not to prosecute in a work-related case of, say, stealing, because the CPS do not think they will get a conviction based on ‘beyond reasonable doubt’ the question for the employer is whether, after a reasonable investigation, they have reasonable grounds for believing that the employee is guilty. If the answer is yes and they have the evidence to support, then dismissal may be fair.

However, if the police investigation is ongoing then the police may ask an employer to halt their own internal investigations for fear of the employee being given the opportunity of rehearsing their story or interfering with evidence. A properly advised employee might refuse to co-operate in an internal investigation where they face potential criminal sanctions. This then leaves the employer in a difficult position – do they keep the employee suspended until the outcome of the police investigation or do they dismiss now and risk an unfair dismissal claim?

When might it be fair to dismiss before an employee is charged?
If, for example the alleged offence is serious like such as rape and the employee is out on bail then the employer owes a duty of care to existing employees. They cannot keep an employee facing such charges in a workplace working with others, or where they might have to be alone with customers. On very rare occasions the employer may be justified in dismissing an employee who has not even been charged as happened in the Leach v Ofcom case where the police advised the employer of their concerns that Mr Leach was a risk to children and the reputational risk for Ofcom was simply too high. He had been arrested but released in Cambodia before taking up his appointment and been untruthful with the press about his employer. It was reported that he was subsequently jailed in Cambodia for child sex abuse.

There are also rare cases when association with a criminal can lead to dismissal as happened in Reilly v Sandwell Metropolitan Council when a head teacher was fairly dismissed because of her association with a man convicted of making indecent images of children. The fact she had not alerted the Governors and allowed them to assess the risk and failed to acknowledge her duty ultimately lead to her dismissal for gross misconduct.

Every case of this kind is difficult and fact sensitive and advice should always be sought both from specialist employment lawyers and from insurers before deciding whether to terminate someone’s employment.

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