Employing people with convictions: here’s the score

September 29th, 2016

The issue of employing a convicted footballer has been generating hot debate in recent weeks. So what are laws governing the employment and rehabilitation of offenders? And how can you reliably check whether an applicant has a criminal record? Here are some key points…

1: How can I check to see if an applicant has a criminal record before offering them a job?

The Disclosure and Barring Service (formed from the Criminal Records Bureau and Independent Safeguarding Authority) provides a vetting service for a fee.

To prevent abuse of the system, only registered organisations can apply for the standard and advanced reports, but if an employer isn’t a registered organisation, there are umbrella organisations who can run a check on their behalf.

Standard reports (‘certificates’) detail spent and unspent convictions, conditional and unconditional cautions, and police reprimands and warnings.

The enhanced version adds relevant police information, as well as information from statutory lists, such as whether a person is unsuitable to work with children or vulnerable adults.

A basic disclosure service will soon be available to individuals aged 18+ in England and Wales. This either provides a simple ‘all clear’ or lists unspent convictions, along with any conditional or unconditional cautions.

As part of your selection process you can also ask applicants to disclose any unspent convictions on their application form or at interview. Make full disclosure a condition of their employment.

2: Do I have to perform a criminal records check?

The Safeguarding Vulnerable Groups Act (2006) requires employers to perform DBS checks for certain occupations, including those working with children or vulnerable adults.

Beyond this, it is in your interests to know about any ‘unspent’ criminal convictions an applicant may have. What you do with this information will depend on the circumstances (see below).

3: What are ‘spent’ criminal convictions?

The Rehabilitation of Offenders Act 1974 stipulates that certain criminal convictions should be viewed as ‘spent’ after a certain period of time.

These are wiped from the records and applicants do not have to disclose them. An employer cannot take these convictions into account when assessing someone’s suitability for a role.

More serious convictions, such as murder or rape, never become ‘spent’ so you have a right to know, regardless of when they occurred.

4: An applicant has an unspent criminal record. What should I do?

Certain types of conviction will prevent people from working in certain occupations. Teaching or childcare and certain positions of trust in financial services or the professions are examples.

Otherwise it is up to you, the employer, to decide whether you employ someone with an unspent criminal conviction. Questions you might want to ask include:

  • Is the conviction relevant to the position? Would it pose a risk?
  • How serious was the offence, when did it take place and were there mitigating reasons for it at the time?
  • Is the person a repeat offender?
  • Do they have reliable references from trustworthy people?
  • Could you maintain some additional controls and checks at work, at least for a probationary period?
  • Will the applicant need to travel for work, say to the USA (a conviction might prevent them obtaining a visa).

5:      Do I have the right to refuse employment to someone with an unspent criminal conviction?

Provided the conviction is ‘unspent’ (i.e still on the person’s record), you can decide not to employ that person. This also applies if the conviction is ‘spent’ and the job concerned is listed in the Exceptions Order (1975).

If the conviction is ‘spent’ you cannot use it as a reason to reject the applicant (although you can of course reject them on other, legal grounds).

6:      I’ve discovered an employee has been convicted of a crime. What can I do?

If the conviction is unspent and was not disclosed at interview you could terminate their employment for ‘breach of trust and confidence’ (if you felt this was best for the business).

It is always a good idea to include a condition in the employment contract that employees must disclose any convictions that arise during their employment.

Of course, if a conviction emerged that made it unlawful to employ the person in a specific job, you would be obliged by law to terminate their contract immediately.

7:      Am a liable if I employ someone who then reoffends in the course of their job?

As an employer you would have a duty of care (whether or not the person had previously offended) and might be liable should someone claim. This has certainly happened where employees have abused children in the course of their jobs.

It is extremely important to carry out any statutory checks required, to take reasonable precautions to protect customers and staff members (whatever the role) and to have adequate public and employers’ liability insurance in place.

This article has briefly covered some of the key points surrounding employing offenders, but you should take legal advice relevant to your specific circumstances about policies or particular issues.

If you employ people and would like to discuss you situation please get in touch.