Employees with criminal convictions: A right to work?

Footballer Ched Evans was released from prison last October, having served half of his five-year sentence for the rape of a 19-year old woman.

Footballer Ched Evans was released from prison last October, having served half of his five-year sentence for the rape of a 19-year old woman in a hotel in May 2011. His struggles to return to football have been well documented in recent weeks. Following adverse publicity, his former club, Sheffield United, did not re-sign Evans and North West club Oldham Athletic, then declined at the last minute to take him on after a further wave of negative commentary. 

Public opinion has been divided as to whether Evans should be allowed to return to football given his conviction. Whilst some have said he has served his time and should be allowed to continue with his life, others are of the view that he should not be allowed to return in light of the role-model status which it is contended footballers’ have.

But what exactly is the legal position in relation to both current and prospective employees with criminal convictions?

Prospective employees

As an employer you are, of course, entitled to take into account current (or 'unspent') criminal convictions when deciding whether to offer a role to a prospective employee. However, it is still sensible to consider whether the conviction is really relevant to the position in question. In the interests of fairness you might consider discussing with the applicant the circumstances surrounding the offence and any explanation they have to offer.

If  a criminal record check, otherwise known as a Disclosure and Barring Service (‘DBS’) check, reveals an unspent conviction which, in your view, renders an applicant unsuitable for a job, then the offer can be withdrawn. 

However, the Rehabilitation of Offenders Act 1974 prohibits any employer using knowledge of a ‘spent’ conviction as grounds for excluding prospective employees from employment or dismissing current employees unless an exception applies.

A ‘spent’ conviction is one where a person convicted of a criminal offence does not re-offend during the rehabilitation period following the conviction and therefore is considered rehabilitated. This is subject to certain exceptions where a conviction is not treated as spent and must be disclosed.

There is an Order listing a number of occupations, offices and professions (of which there are at least 70), where a conviction is not considered spent and must be disclosed. Most notably, this includes jobs such as teaching, social work or health care that would involve working with children or vulnerable adults (but not being a football player).

There is generally no requirement for prospective employees to tell their potential employers about spent convictions or cautions (unless they are not considered spent). However, there is also no prohibition on an employer asking a prospective employee about their criminal record.

Where you are not bound by sector-specific regulations and are able to exercise your own judgement as to the weight which should be attached to the person's criminal record, Nacro (the crime prevention charity) recommends that, rather than imposing a blanket ban on employing ex-offenders, a risk assessment should be carried out which is relevant to the sector, position and situation.

In reality, whilst you cannot legally refuse a prospective employee a job simply because they have a spent caution or conviction, unless an exception applies, there is no specific penalty under legislation for doing so. Therefore, for job applicants who believe that the discovery of their criminal record has prevented them from getting the job, there is limited redress under current legislation.  

Current employees

The majority of spent convictions do not need to be disclosed by prospective or current employees, even where there is a contractual requirement to disclose. A person cannot be subjected to any liability or otherwise prejudiced for failing to disclose a spent conviction (unless an exception applies).

In circumstances where you learn that a current employee has a criminal record, whether you can dismiss them without risk of a successful unfair dismissal claim will depend upon the circumstances. Employees require two years service to claim unfair dismissal so dismissal of short-servers will be low risk. If the conviction is spent, and does not fall under one of the exceptions, a dismissal on these grounds is likely to be unfair as failure to disclose the details or indeed the existence of a spent conviction is not legally required. However, the situation is different if an employee is found to have lied about their criminal record and they were not legally entitled to conceal it because it was spent. You could potentially fairly dismiss the employee in these circumstances, but will need to follow a fair procedure and consider carefully the reason for the dismissal.  It may be it is a breach of the duty of trust and confidence. However, you may face difficulty in situations where an employee has shown themselves to be trustworthy and competent throughout their employment, as dismissal could fall outside the range of reasonable responses open to the employer. Much depends on the nature and severity of the concealed offence and its relevance to the employee’s role.

If an employee acquires a criminal record during their employment; whilst this may call into question their suitability, you should consider what bearing, if any, the conviction has on the role.

Ultimately, society needs a fair balance to be struck between the rehabilitation of those with criminal records and the need of employers to be sure that their staff are competent, reliable and pose no threat to those they will have contact with at work.  It is recognised that there is an overriding need for disclosure in certain situations to protect certain vulnerable groups. When personally faced with this dilemma as an employer, the key is not to dismiss as a knee-jerk reaction, but carefully consider the options, follow a process, and take advice, before reaching a decision.

As illustrated by the Evans case there are also reputational issues that need to be considered. Whilst society may have an obligation to help rehabilitate those who have offended, you will need to be mindful of the potentially destructive effects that the recruitment of an ex-offender might have on your organisation’s image and commercial activities.

Laura Rogers is a Paralegal in our Liverpool Employment and Pensions Team. If you are struggling with a recruitment decision or have any other questions please speak to your usual Weightmans contact or get in touch with Laura laura.rogers@weightmans.com.

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