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Talking Shop
When is the best time to ask about a candidate's record?
The Chartered Institute of Personnel and Development (CIPD) has
produced guidance on employing ex-offenders, which recommends
employers do not ask for details of convictions until the interview stage.
To manage expectations, advertisements or applications forms should
make it clear that details of criminal convictions will be requested at
interview. If, based on the interview, you decide to make an offer, this
should be conditional on the criminal records checks coming back clear.
What if you offer someone the job but subsequently discover
they lied about their criminal record?
If shortly after hiring someone you find out that they lied about an
unspent conviction, you would usually be justified in dismissing them, as
this would be a serious breach of trust. By contrast, dismissing an
employee for failing to disclose a spent conviction will usually be unfair.
Dismissal is also likely to be harder to justify if the employee has had
several years of loyal and trustworthy service by the time you discover the
lie, unless it is so serious that you genuinely would not have hired them
had you known the truth.
Are there any roles where you must do background checks?
Yes, criminal records checks are compulsory for most people working with
children or vulnerable adults – for example, teachers and social workers.
Checks are also required where the role gives the employee an
opportunity to have contact with children or vulnerable adults – for
example, cleaners or caterers at a school or hospital. Employers in these
fields must obtain an Enhanced Disclosure, as well as checking to see if
the individual's name appears on one of two lists of persons deemed to
be unsuitable to work with either children or vulnerable adults, which
are now administered by the Independent Safeguarding Authority. It is an
offence to employ someone to work with children or vulnerable adults if
they appear on one of these lists of barred individuals.
What about employees in the financial services industry?
from the company – then the employer needs to conduct an investigation
Criminal record checks are not compulsory for financial services
and hold a disciplinary hearing before making a decision to dismiss. If the
employees, but they are common in the industry. How far you go depends
allegations are proven, then dismissal will usually be justified. The
on the nature of the role you are recruiting for. Guidance from the
employer should conduct its own investigation regardless of whether or
Financial Services Authority recommends that employers conduct
not the police intervene. The employer does not usually have to wait until
criminal records checks for anyone seeking "approved person status" and
the outcome of the criminal trial before proceeding, as this could take
employers in this situation should ask for both spent and unspent
several months. If the employee is dismissed and later acquitted at trial,
convictions. There will be other roles in the industry where it is only
this would not necessarily make the dismissal unfair. Unlike a criminal
appropriate to ask for unspent convictions.
case, an employer does not have to be satisfied beyond reasonable doubt
that the employee is guilty before they can dismiss. The employer only
What if an existing employee is charged with or convicted of a
needs to show they have a genuine belief in the employee's guilt which is
criminal offence? Can you fire them?
reasonable based on the evidence gathered from a reasonable
Being charged with or convicted of a criminal offence is not itself a reason
investigation.
for dismissal. If the charge is for something the employee did outside
work, you should always consider what impact the charge or conviction
So, should you use criminal records checks when hiring
will have on the employee's suitability to do their job and their
new staff?
relationship with the company, colleagues and customers. For example,
Employers should decide on a case by case basis whether it is appropriate
it might be reasonable to dismiss someone found guilty of fraud outside
to ask about a candidate's criminal history for a particular role. Criminal
work if part of their job is operating a till, but it might be excessive to
records checks should only ever form one part of any recruitment
dismiss them for a traffic offence if driving does not form part of their
decision, along with seeking appropriate references and checking
role.
qualifications. Having clear job descriptions will also help identify
An employee dismissed for an offence committed outside work that
whether a criminal offence is relevant and whether a candidate is suited
has no impact on their job could bring an unfair dismissal claim and seek
to the role. Using probationary periods effectively may also be a more
compensation of up to a maximum of around £70,000.
helpful way of assessing an individual's suitability.
Adam Rice
What if the offence was committed at work?
Adam Rice is a specialist in employment law at City solicitors, Travers Smith
If the offence happens at work – for example, the employee is stealing
LLP.
www.footweartoday.co.uk JANUARY 2010
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FOOTWEAR TODAY
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