Credit Management APRIL 2019

HR MATTERS ROUNDUP
Crime and
Punishment
The legalities surrounding future employees
checking criminal records.
AUTHOR – Gareth Edwards
A
recent study, conducted for the
Scottish Centre for Crime and
Justice, found that 11 million people
in the UK have a criminal record and
that 75 percent of employers admit
to rejecting a job applicant once a
criminal conviction is disclosed.
It’s important to note that an employer can obtain
information on a person’s criminal record. They
can do so in one of two ways – either by asking the
candidate or employee directly, or by requesting an
official criminal record check by the Disclosure and
Barring Service (DBS).
The treatment of individuals with criminal
records is set out in the Rehabilitation of Offenders
Act 1974 (ROA 1974). Subject to certain exemptions, a
person whose conviction is spent is entitled to hold
themselves out as a having a clean record – only
‘unspent’ convictions need to be disclosed.
If an individual has a spent conviction and
they choose not to disclose it when questioned,
subject to certain exemptions, they cannot be
penalised – including an employer not hiring
them. Failure to disclose a spent conviction is not a
lawful ground for dismissal or exclusion, and so an
employee dismissed on these grounds may bring a
claim for unfair dismissal.
The Rehabilitation of Offenders Act 1974
(Exceptions) Order 1975 identifies that in certain
cases spent convictions should be disclosed,
including: professions such as medicine, lawyers,
accountants, vets, chemist and opticians; those
employed to uphold the law, including judges and
prison officers; certain regulated occupations,
including financial services; those who work with
children and vulnerable adults; and those whose
work could pose a risk to national security.
A person can be asked about their spent
convictions under the Exceptions Order as long
as the question is for the purposes of assessing
suitability for a role. At the time of asking it should
be made clear to the applicant that they are obliged
to disclose spent convictions. If an applicant fails to
disclose a spent conviction in these circumstances
an employer will have a valid reason for withholding
or withdrawing an offer of employment or dismissal.
DISCLOSURE AND BARRING
There are two main types of DBS checks, standard
disclosure and enhanced disclosure. Employers
should remember when considering requesting
a DBS check that this can only be requested if the
individual in question is to undertake a role set out
in the Exceptions Order.
That said, there is now the option for an individual
to request a basic certificate from the DBS which
includes details of unspent convictions and cautions.
However, an employer cannot force an employee to
get this information.
Employers should always exercise independent
judgement in considering what weight to attach to
any disclosed conviction or caution.
CRIMINAL RECORD
If a conviction, spent or unspent, is disclosed
an employer’s response should depend on the
individual circumstances. If the conviction is spent
and the position applied for does not fall under the
Exceptions Order the employer may not refuse to
employ the individual on the basis of the conviction.
If the conviction is spent, but the position falls
under the Exceptions Order, then an employer may
refuse to employ the individual. Due regard should
be given to industry and sector specific guidance
here as this will often set out how an employer
should proceed.
If the conviction is not spent the employer
may refuse to employ the individual, but again,
appropriate regard should be given to any sector
specific legislation.
NON-DISCLOSURE
As before, an employee is entitled to withhold a
spent conviction, subject to the exceptions, and it is
likely that if an employee with qualifying service is
dismissed for this reason the dismissal will be unfair.
If a person has deceived their employer about
a criminal record and they were not entitled to
withhold the information, then the employer may
terminate their employment contract for breaching
the implied term of mutual trust and confidence.
Care should be taken where an employee has
sufficient qualifying service to bring an unfair
dismissal claim as an employer will need to show
that dismissal was within the band of reasonable
responses. In considering this an employer will want
to think about the employee’s performance record as
well as whether or not the conviction was relevant or
particularly serious.
Employers can continue to reject applications on
the basis of a criminal record without taking these
steps. However, giving more thought to the situation
may open up a wider range of suitable candidates for
a role.
Gareth Edwards is a partner in the employment team at
VWV.gedwards@vwv.co.uk.
The Recognised Standard / www.cicm.com / April 2019 / PAGE 50