Discovering an Employee Has a Criminal Conviction

Employers are entitled to ask job applicants whether they have a criminal record. It is perhaps surprising, therefore, that many employers are seemingly unaware of this and do not avail themselves of this right.

If an applicant is asked whether they have a criminal record, they should be honest, although they may be legally entitled to withhold this information in exceptional circumstances. On the other hand, an employer who asks about this is likely to be better placed to potentially dismiss an employee with a criminal record than one who does not.

Here are some of the key issues for employers to consider when dealing with applicants with criminal records, or existing employees whom an employer discovers has a criminal record.

How to obtain information

The most obvious time to ask whether an applicant has a criminal record is during the recruitment process. Usually this should be done once an applicant is shortlisted to be offered a role, so that the company is not unnecessarily obtaining data on all applicants.

Additionally, for certain roles involving positions of trust, including professionals and those working with children and vulnerable adults (an excepted role), a company may carry out an official criminal record check through the Disclosure and Barring Service (DBS). The government’s DBS guide to eligibility sets out a list of the roles covered.

There is also sector-specific guidance that may be relevant to determining whether a criminal conviction is relevant to the role to be undertaken.

Do applicants have to disclose a past criminal record?

The law seeks to balance the right of convicted criminals to rehabilitate and move on with their life against the rights of employers, who may be justified in knowing about a person’s criminal record. Whether an applicant is obliged to disclose a criminal record will depend on the circumstances:

• A person who has been convicted of a criminal offence but who does not re-offend within a prescribed rehabilitation period is considered rehabilitated, and their conviction then becomes "spent". This means that, save in exceptional circumstances as set out below, the person can treat themselves as having no criminal record, and they do not need to disclose their spent conviction. The slate is effectively wiped clean.
• During the prescribed rehabilitation period, the conviction is regarded as "unspent". An applicant with an unspent conviction should disclose this fact to a prospective employer if specifically asked about this, regardless of the role applied for. By way of exception, certain convictions are not regarded as spent and should be disclosed in the event that the applicant wishes to undertake an excepted role.

By way of exception, certain convictions are not regarded as spent and should be disclosed in the event that the applicant wishes to undertake an excepted role.

Discovering an applicant has a criminal record

Unless the role is an excepted role, an employer may still be prepared to employ an applicant with a criminal record, whether spent or unspent.

First and foremost, the employer should consider whether it really matters that the employee has a criminal record. This may ultimately depend on the nature of the role undertaken by the employee. Other factors that may be relevant include the seriousness of the offence, how long ago the crime was committed and the circumstances surrounding the offence committed.

With regard to spent convictions, unless the role is an excepted role, an applicant is entitled to withhold information about a spent conviction and an employer may not refuse to employ an applicant because they have a spent conviction. An employer can, however, decide not to offer employment to someone with an unspent conviction.

Discovering an employee has a criminal record

Whilst an employer may be unhappy to discover an existing employee has an undisclosed criminal record, whether the employer can take action against the employee will depend on the circumstances. As with job applicants, the employer should first consider whether it really matters that the employee has a criminal record. They should also consider the other factors as set out above for applicants.

With regard to spent convictions, unless the role is an excepted role, an employer should not dismiss an employee for failing to disclose a spent conviction. Dismissing for a spent conviction may lead to a claim for unfair dismissal, if the employee has two years’ qualifying service to claim unfair dismissal.

The law seeks to balance the right of convicted criminals to rehabilitate and move on with their life against the rights of employers, who may be justified in knowing about a person’s criminal record.

If an employer discovers an existing employee has an unspent conviction and the employee has less than two years’ service, the employer may be justified in dismissing the employee for breach of trust and confidence, particularly if the employee was asked about their criminal record and lied about it – for example, if the employee failed to disclose information in response to a specific request on a job application form.

However, there is no automatic right to dismiss in such circumstances and if the employee has more than two years’ service, they will have the right not to be unfairly dismissed. In such circumstances, it may be more difficult for the employer to show that the employee has breached trust and confidence if they have already proved themselves as honest and trustworthy over the preceding period.

If an employee acquires a criminal record during their employment, the employer may wish to consider whether the conviction has an impact on their suitability for ongoing employment in their role. Again, where the employee has more than two years’ service, the employer should exercise particular caution and ensure it has a fair reason for dismissal and acts fairly in the circumstances.

Employers dealing with regulated roles are likely to be aware of their rights to obtain sufficient background information on potential employees. For excepted roles, it is crucial for employers to carry out proper criminal records checks.

For other roles, employers are still entitled to ask employees about unspent convictions. If an applicant or employee then fails to disclose such information, the employer will be better placed to take action to dismiss that person. Employers who do not ask about an applicant’s criminal record are more likely to find significant time passes before they discover the employee’s previous offences, if at all. This is likely to make it more difficult to take action to dismiss the employee.

About the author

Michelle Last is a consultant solicitor at Keystone Law, specializing in employment law. She is a regular contributor to the press and has been published in The Times, The Financial Times, The Sunday Times, HR Director and Personnel Today, among other titles. Last is frequently ranked as the “most viewed” employment law solicitor and regarded as a “thought leader” on LinkedIn.