We have just found out that an employee has a criminal conviction which he did not declare on his application form when he applied to work at our company, despite being asked to do so. What are we able to do about this?


Lindsay Gibson writes:


How you can deal with this situation fairly and lawfully, will depend on whether the conviction is ‘spent’ or ‘unspent’, the type of job which the employee carries out, and the particular circumstances relating to this employee.

A conviction becomes ‘spent’, or forgotten about, after a rehabilitation period. Different rehabilitation periods apply to different offences, based on the employee’s age at the time of the conviction and type of sentence received. The shortest rehabilitation period (for an adult), is one year following a fine or the expiration of a community order, although serious convictions (entailing a custodial period of over four years) are never spent.

Depending on how much information you have in respect of the employee’s conviction and how you became aware of this, the first step to take may be to have an investigatory meeting with the employee, to make sure your facts are correct, before taking any action.


(A) Spent Convictions


An employee is generally not required to disclose a ‘spent’ conviction, even if you directly ask them for such information or where disclosure of criminal convictions is expressed as a contractual obligation. You will usually not be able to discipline or dismiss an employee for failing to disclose a spent conviction, or, indeed, discipline or dismiss an employee because they have a spent conviction, except where their role is in one of the ‘excepted occupations’ (see below).


(B) Unspent Convictions


The first issue to consider is whether the employee has lied about their criminal record, in circumstances where he had an obligation to disclose ‘unspent’ convictions to you. If so, you might want to dismiss the employee, relying on their breach of the implied term of trust and confidence due to such dishonesty. However, care needs to be taken particularly if the employee has accrued one year’s service and the right to bring a claim of unfair dismissal.

If such an employee has been in the role for a long time, and has proved to be a good and competent employee, it is possible that such a dismissal could be held to be unfair as it falls outside the range of reasonable responses available to a reasonable employer. It is also always important to follow a fair procedure. Before taking any action in respect of an employee who has lied about their criminal record, an employer should give careful consideration to: why the employee did not disclose the information; the relevance of the conviction to the job; and the employee’s employment record.

The question of whether the unspent conviction calls the employee’s suitability for the role into question should also be considered, and the following factors taken into account in this respect.

Firstly, is the conviction relevant to the position in question? What is the seriousness of the offence and how long ago was the offence committed? Is there a pattern of re-offending and have the employee’s circumstances changed since the offence? Has the individual offered any explanation of the circumstances surrounding the offence? Depending on the answers to these questions, dismissing the employee due to their ‘unspent’ conviction may fall within the range of reasonable responses available to a reasonable employer.


(C) Excepted Occupations


There are a number of ‘excepted’ occupations, offices and professions, where an employee can be asked to disclose ‘spent’ as well as ‘unspent’ convictions. Examples of ‘excepted’ occupations include certain roles in the police service, the financial services industry and where employees are working with children or vulnerable adults.

It should be noted that the factors set out above should also be considered where employee works in an ‘excepted’ occupation – generally, the fact that an employee working in such an occupation has an ‘unspent’ or ‘spent’ conviction will not result in an employer being able to terminate their employment automatically without consideration of any specific industry guidance in this respect, or without proper investigations, a fair procedure, and consideration of alternatives to dismissal.


(D) Barring List


If you discover that, due to the recent conviction, the employee is on a Disclosure and Barring Service ‘Barred List’, i.e. they cannot work in a regulated activity with children or adults, it is against the law for you to continue to employ the employee for this kind of work.


(E) Steps an Employer can take


It would be useful to have a clear, written policy in place, which sets out the requirement for a successful job applicant (to whom the employer wishes to offer employment) to disclose unspent convictions, in addition to a continuing expectation on an employee to disclose any unspent convictions which are attained in the course of their employment.

Disclosure of ‘spent’ convictions will only be appropriate where the job is an excepted occupation. Such a policy could outline the factors set out above, so that an employee has a clear expectation of how such disclosures will be dealt with and the possible employment consequences.

Where appropriate it is also open to the employer to ask successful job applicants to undertake a ‘basic’ check through AccessNI as a condition of taking up employment, or in certain occupations, request a more stringent ‘standard’ or ‘enhanced’ check.

More about AccessNI:
http://www.nidirect.gov.uk/accessni-criminal-record-checks