Subject to certain exceptions, an employee need not disclose any spent conviction to their employer or potential employer and their failure to do so is not a fair reason for dismissal or exclusion from employment. An employee with over two years' service who is dismissed for having a spent conviction would be able to argue that their dismissal was unfair as it would not be a potentially fair reason for dismissal. However, prospective employees and employees with less than two years' service may be left without a remedy as there is no specific penalty, in terms of the Rehabilitation of Offenders Act 1974, for breach of the prohibition. It might though be possible to complain under the data protection legislation albeit this is not likely to take them very far.
As indicated, there are exceptions to this general rule including certain professions (such as medical practitioners, lawyers, vets, accountants and social workers) and certain specific jobs (such as judicial appointments, police, prison officers, traffic wardens and certain financial services jobs) and where the employee would be working with children or vulnerable adults. In these circumstances, an employee may be asked if they have a spent conviction provided that they are asked for the purpose of assessing their suitability for the position. A failure to answer or a failure to give truthful information will be a valid reason to dismiss or to withhold the offer to engage or employ the individual.
Where I have seen this arise in practice most often is where an employer becomes aware of a conviction (that is not spent) after they have employed someone, irrespective of whether the conviction took place before or after the employment commenced. The ACAS Code Of Practice on Discipline & Grievance states that:-
“If an employee is charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.”
Accordingly, whilst employees can be dismissed for conduct occurring outside of work, for a dismissal to be fair any criminal conduct is likely to require either to affect the business or to undermine the confidence which the employer has in their employee. Care does though require to be taken as the situation is not always as clear cut as employers may believe.
In the case of Post Office v. Liddiard which received a lot of publicity at the time, a Post Office worker was dismissed as a result of his conviction for violence in Marseilles during the 1998 football World Cup. Mr. Liddiard admitted throwing bottles at Tunisian fans and was also charged with an attack on a police officer. He was tried and convicted in France and sentenced to 40 days in prison. There was significant negative media coverage which referred to both Mr Liddiard and the fact that he was employed by the Post Office. Mr Liddiard was subsequently dismissed on the grounds that his conduct had brought the Post Office into disrepute and he raised a claim for unfair dismissal.
Surprisingly, the Tribunal initially held that the dismissal was unfair. Following two appeals the case was referred back to a different Employment Tribunal as, in the Court of Appeal’s view, the original Tribunal had not properly considered whether the Post Office had acted within the range of reasonable responses of a reasonable employer.
Points for employers to consider
If an employer becomes aware of an unspent conviction then potential relevant factors which should be considered (and which should be documented as having been considered) include:-
1. the nature of the job;
2. the nature of the conviction/offence;
3. status/seniority of the employee;
4. any effect conviction offence has on ability to do job;
5. effect conviction has on the business of the employer;
6. any press coverage linking individual to the particular employer;
7. extent to which the work involves contact with the public;
8. previous disciplinary record and length of service of employee.
Bear in mind also that even if an individual is not actually convicted it may still be possible for an employer, who has sufficient evidence of the employee’s conduct, to dismiss, depending on the nature of that conduct. This does though raise some tricky questions regarding whether an employer can initiate disciplinary proceedings and/or dismiss an employee while they are being investigated by the police or after the employee has been charged but where they are awaiting trial. I will blog separately on this shortly.