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Dealing with prospective and current employees with criminal convictions or charges

Recently there has been much debate regarding the potential return of Ched Evans, who was convicted of rape and served two and a half years in prison, to a professional football career.

Criminal checksEvans has been linked with a number of clubs since his release, most recently Oldham, but has not signed anywhere, predominantly due to pressure from members of the clubs fan base along with threats of withdrawal from various sponsors.

But what are the legal consequences for employers when faced with an employment application by somebody who has a criminal conviction?

If an employer is interested in such a candidate, then the first step would be to check that there were no regulatory restrictions. For example if a candidate is on the sex offenders register, then they would be prohibited from working with vulnerable adults or children and therefore a care home or school would not be able to employ them if the work involved them coming into contact with such protected individuals.

Even after that hurdle is cleared, consideration needs to be given to any restrictions or terms on the candidate. For instance the candidate may need to have regular meetings with their probation officer and any such imposed term will most likely need to be dealt with in the contract of employment.

If an employer does not want to take on such a candidate, then they face little in the way of potential legal ramifications, unless the candidate can link the refusal to consider or employ them to a protected characteristic.It should be noted that some convictions can become spent after a period of time, in which case the employee does not have to disclose them. Custodial sentences of over four years and certain sexual or violent crimes can never become spent.

The situation becomes more complex when a current employee  is faced with criminal charges. Employees have more protection than prospective candidates and could have acquired unfair dismissal rights during their service with the employer.That is not to say that employers have their hands tied completely. If their accused employee has bail conditions, which prevents them from attending work, then in some circumstances an employer may be justified in dismissing.

Equally if an employee is charged with a crime that causes the other employees or key clients to state that they cannot work with the individual, then an employer may find that they have no alternative but to dismiss the charged employee.

What is absolutely key however is not to pre-judge the effect that the charges could have without proper consideration. Employment Tribunals may have little sympathy with employers who make assumptions regarding the reaction of their clients, customers and employees to an individual charged with a crime.

In the event that the employer does receive objections from clients, customers or employees, an employer would be expected to explore those objections and see if they can find a way to provide reassurances. If that is not possible, then an employer would still be expected to look at alternative roles within their organisation for the charged individual before moving to a potential dismissal.

Other blogs of interest:

Enforced Subject Access Requests

Criminal convictions and recruitment – part two

Criminal convictions and recruitment – part one

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further