As part of their recruitment process many employers want to know if candidates have any criminal convictions. What are they entitled to ask and be told?
The starting point is the Rehabilitation of Offenders Act 1974. Criminal convictions should not act as a “ball and chain” to offenders indefinitely so the Act sets out rules as to when an individual should be considered rehabilitated. It does this by providing that after a certain length of time convictions are considered “spent”.
The structure of the Act is that the length of time before a convictions is spent is measured by reference to the sentence imposed rather than the type of offence. These periods were reduced earlier this year. As an example until March 2014 a custodial sentence of between 2½ years and 4 years was never considered spent but since March the period is 7 years from the date the sentence, including any period on licence.
Special regimes for obtaining information about criminal convictions of job applicants apply in certain circumstances which will be dealt with in part 2 of this blog but for the moment we will focus on routine job applications.
As part of a recruitment process employers are free to ask if an applicant has any previous criminal convictions. The employer will have to rely on the applicant revealing this information and the employer needs to be aware that the applicant only has to disclose unspent convictions. On occasions employers take the view that applicants have lied when they subsequently find out about a person’s spent convictions but there is no general obligation to be told about these. In fact the 1974 Act prohibits employers excluding or dismissing individuals from employment based on knowledge of spent convictions although the Act does not provide any form of redress for the individual.
Assuming that a job applicant does declare convictions how should an employer react to this? Many will just reject the applicant but this may result in the loss of someone who is otherwise a very good candidate. It is at least worth exploring matters further and as recommended by Nacro finding out more information about the relevance, seriousness and circumstances of the offence.
Two other aspects commonly lead to issues:
1. The employer asks about convictions is not told of these and then finds out about them after the individual has been recruited. If the information concerns a spent conviction then it is likely that any dismissal will be unfair – there was no obligation to disclose in the first place. On the other hand if an unspent conviction comes to light the employer may justifiably take the view that the failure to reveal this has undermined trust and confidence.
2. What about criminal convictions arising during the course of employment. This can be covered by a robustly worded contract which requires employees to tell the employer of any new convictions during the employment relationship. That is not to say that acquiring a conviction is necessarily a fair reason for dismissal. As in the recruitment process employers should weigh up the circumstances. In some cases e.g. that of a driver a conviction that leads to the loss of his licence is likely to be grounds for dismissal although even in this situation thought should be given to whether there is any alternative employment that can be offered.
Whilst there is likely to be little risk in dismissing during the first two years of employment that will not be the case once the employee has full unfair dismissal rights.
Finally employers need to bear in mind that information about criminal convictions is “sensitive” data for the purposes of the Data Protection Act and should be treated accordingly.