WorkLife

Our thoughts on the world of employment law - and beyond.

Should Ched be given another chance? How employers should treat employees with criminal records

No one will need reminding as to why Ched Evans has been in the news in recent weeks.  The case has attracted a huge amount of media interest, with even Nick Clegg offering his two-bits. The public (and Sheffield United board) seem to be divided as to whether Evans should be allowed to play professional football again for his former club.

Over 150,000 people have signed a petition urging Sheffield United not to re-sign Evans after his release from prison. Sheffield United has so far remained tight lipped, but appears to be continuing to deliberate Evans' future at the club. But how should employers treat employees (and prospective employees) with a criminal past?

 

The recruitment process: employing individuals with criminal convictions

If a criminal record comes to light as part of the recruitment process, in some instances, that information will be determinative of an application. For example, it would be inconceivable to employ teachers if their names appeared on a barred list, and of course the Safeguarding Vulnerable Groups Act 2006 makes it unlawful to do so.

Employers in certain professions can take "spent" convictions into account. These professions are set out in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ("Exceptions Order") and common examples are individuals who work with children or vulnerable adults and those who work in the financial services/legal sector.

A "spent" conviction is one where an individual has been convicted, but has not re-offended during their rehabilitation period. Contrary to common belief, a person's rehabilitation period will differ on the length of sentence imposed, rather than the nature of the offence. For example, an individual who receives a custodial sentence of 6 months or less will have a rehabilitation period of 2 years, beginning on the day that the sentence is completed. After the two years, the conviction will be "spent" and the individual can hold himself/herself as having a clean record.

Where an employer is not bound by any sector-specific guidance or regulation, and if the role does not fall within the professions listed in the Exceptions Order, only "unspent" (i.e. current) convictions can be taken into account. If a candidate has an unspent conviction, it is good practice for employers to have regard to the following:

  • How relevant is the conviction to the job?
  • How serious is the offence?
  • When was the offence committed?
  • Is there a pattern of offending?
  • Have the candidate's circumstances changed since the offence?
  • Has the candidate offered any explanation?

No doubt Sheffield United is considering some of these questions right now, including wider questions around footballers as role models for young children.  However, employers who carry out a risk assessment which is relevant to the sector, role and situation are in a far better position than those who have a blanket ban on employing ex-offenders.

From a practical point of view, a wise employer should provide a clear job description at the outset and make good use of probationary periods to assess the suitability of any candidate (with or without a criminal record) for the job in question. Good recruitment practices which include checking qualifications and taking up references are also vital for assessing a candidate's suitability for the role.

 

Can an employer refuse to employ a candidate with a criminal record?

Employers can refuse to employ candidates with criminal records, but only in certain circumstances. A brief summary of the position is as follows:

  • If a candidate's conviction is "unspent", an employer has discretion whether or not to employ that individual.
  • By contrast, if the conviction is "spent", an employer may not refuse to employ someone on this basis, unless the position applied for falls within the Exceptions Order. However, if an employer refuses to employ the candidate, they appear to have limited redress. A disgruntled candidate may be able to complain that the employer improperly processed personal data, but unless they can show that they were not offered the job as the result of their spent conviction (which is undoubtedly a high hurdle to climb), there is no obvious remedy available to them.
  • Where the profession is listed in the Exceptions Order, then an employer may refuse to employ a candidate with a "spent" conviction (and must do so if there is legislation specific to that sector which prevents an offer of employment being made).

 

When must an employee disclose a conviction to their employer?

Under the Rehabilitation of Offenders Act 1974, most "spent" convictions do not need to be disclosed to a prospective or current employer. This applies even where there is a contractual requirement to disclose convictions or a direct request for that information. By contrast, if an individual has an "unspent" conviction, this should be disclosed in response to a request for details of their criminal record.

Unless the Exceptions Order applies, an employee or prospective employee cannot be subjected to a detriment (including refusing to hire and passing them over for promotion) for failing to disclose a "spent" conviction. The policy reason behind this rule is understandable: after a certain period of time an individual is deemed to have been rehabilitated back into society and the workforce. Once someone has served their time, they should be given a second chance to move forward with their lives and contribute to society.

 

Can an employer dismiss an employee if they are convicted of a crime?

This is unfortunately subject to a caveat often quoted by lawyers - "it depends".

  • If a conviction is "spent" (and the position does not fall within the Exceptions Order), a dismissal for failing to disclose a conviction will almost certainly be unfair.
  • If an employee has an "unspent" conviction and lied about it, an employer may consider dismissing an employee for breach of trust and confidence. However, this does not give employers the green light to dismiss without any consideration of the wider circumstances. For example, if the conviction came to light shortly after an employee started work, an employer is likely to be able to terminate their employment contract by notice (or payment in lieu). By contrast, if an employee has sufficient service to bring an unfair dismissal claim, more care is needed. Where an employee has shown themselves to be trustworthy and competent in their role, particularly over a long period, it may be beyond the range of reasonable responses to dismiss for breach of trust and confidence.

Of course, if an employee acquires a criminal record whilst working for their employer, this could call into question their suitability for the role. Saying that, knee-jerk reactions should come with a health warning. I would recommend that an employer takes into account a number of factors, including the seriousness of the offence and what bearing, if any, the offence has on the employee's role, before making any final decision. A couple of parking tickets certainly shouldn't be seen as an excuse to dismiss.

From a practical point of view, what can employers do to protect their position? If an employer considers that the nature of the role is one which it needs to know on an on-going basis if an offence has been committed, including a continuing obligation to disclose in the contract of employment won't do any harm. Of course, merely having such a clause does not necessarily mean that any subsequent dismissal is fair. But, if an employer finds that an employee failed to disclose a conviction which calls into question their suitability for the role, it could assist in demonstrating that dismissal was within a range of reasonable responses.

Only time will tell, but it will be interesting to see if Evans will step out in Sheffield United colours again or if his next appearance on the pitch will be far away from Bramall Lane.

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