NEWS EXTRA HOW TO DEAL WITH EMPLOYEES WHO HAVE
A RECENT STUDY, published in January (2019) conducted for the Scottish Centre for Crime and Justice, found that 11 million people in the UK have a criminal record and that 75% of employers admit to rejecting a job applicant once a criminal conviction is disclosed. And there is good reason to be that selective. As a search of the web for shows, the problem of criminality isn’t new for the merchant sector.
The law
According to Mark Stevens, a senior associate at VWV, 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). This Act provides a system for the records of people with convictions to be cleared. It does this by setting out periods following a sentence where a conviction is deemed ‘spent’ and the person rehabilitated. Stevens advises that if an individual has a spent conviction and they choose not to disclose it when questioned, subject to certain exemptions, “they cannot be subjected to any liability or prejudice for their failure to disclose. Failure to disclose a spent conviction is not a lawful ground for dismissal.” An employee dismissed on these grounds may bring a claim for unfair dismissal.
Disclosure and Barring Service
There are two main types of DBS check, standard disclosure and enhanced disclosure.
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He explains that “if a DBS certificate discloses convictions, employers should be careful not to respond in a knee jerk way when deciding if the individual is suitable for a role.”
His reasoning is based on a recent case where, in January (2019), the Supreme Court found that the way that criminal records were disclosed to employers infringed individual’s right to private life: “It has been reported that the Supreme Court’s decision was that the criminal records disclosure scheme was disproportionate in certain respects - specifically in respect to the requirement that all previous convictions should be disclosed, (regardless of how minor they might have been), where the person has more than one conviction, and also in respect to young offenders.”
Employers should keep in mind that information on a person’s criminal record is personal data and cannot be processed unless there is a lawful basis for so doing.
As well as having a lawful reason for processing the data an employer should also comply with the data protection principles which includes making sure the processing is adequate, relevant and not excessive.
An applicant has a criminal record
As to how to react if a conviction, spent or unspent, is disclosed, Stevens suggests that 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. When dealing with positions which fall within the Exceptions Order, due regard should be given to industry and sector specific guidance 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.”
A current employee did not disclose
Looking at the issue from the perspective of an employee, Stevens says that here too, “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.”
CRIMINAL CONVICTIONS
John Hindle looks at the laws surrounding employees with criminal records and what employers can do to ensure they ask the right questions at the right time...
He adds that if a person has deceived their employer about a criminal record and they were not entitled to withhold the information, i.e they have an unspent conviction or the exceptions to ROA 1974 apply, then the employer may terminate their employment contract for breaching the implied term of mutual trust and confidence. But he offers a note of caution: “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.” He says that 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.
In summary
As can be seen from the recent research published and the legal considerations, it may not always be appropriate for an employer to ask applicants about criminal convictions.
If an employer chooses to ask for criminal records information in their application form, it should consider writing a detailed recruitment policy with a section on the recruitment of ex-offenders that explains how the suitability of candidates with a criminal record is assessed. This could include the nature of the offence, the relevance to the role applied for, how old the offence is, and whether an individual’s circumstances have changed since it was committed.
Employers can also 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. BMJ
www.buildersmerchantsjournal.net May 2019
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