News of the sacking of England women’s football team manager Mark Sampson has featured across the media and has put recruitment practices under the spotlight. The problems that can be caused by historical allegations of misconduct are not confined to roles that have a high public profile.
Most employers will want to ask candidates about any previous wrongdoing where for example it has been revealed in a reference from a former employer. However in relation to questions about criminal convictions employers need to be aware of the rules regarding historical criminal records and rehabilitation periods.
Generally unless an applicant is working with children, vulnerable adults, or they belong to certain professions, there is no obligation to disclose historical convictions that are ‘spent’.
Whether the conviction is spent will depend on the original sentence and the length of time that has passed since the applicant was convicted. The more severe the sentence the longer it will take before it becomes spent and where it was a custodial sentence of over four years it will never be spent.
An employer may decide not to employ an applicant who has an unspent conviction. On the other hand if a conviction is spent, the employer would not normally be aware of it as the applicant does not have to reveal it.
However what does the employer do if made aware of the spent conviction through a third party or old news report? As the conviction is spent the laws regarding rehabilitation provide protection to the employee in that their failure to disclose it ‘shall not be a proper ground for dismissing or excluding a person from office, profession, occupation or employment or for prejudicing him in any way in any occupation or employment’.
It might seem that this will restrict what action the employer might take. However the flaw is that there is no specific remedy for breach of these provisions.
What claims could a rejected applicant or dismissed employee bring against the employer? It would seem to provide good grounds for a claim of unfair dismissal action but that could only be brought if they had two-year’s service. Prior to having two years’ service, it seems as though an employer is able to dismiss employees who have spent convictions with limited risk, assuming that there are no other issues giving rise to claims where there is no qualifying period such as discrimination or whistleblowing.
If the conviction that comes to light is not spent, the employer may legitimately ask a candidate or an existing employee to give details regardless of how long ago it happened. If the employee fails to disclose it then it may provide a fair reason for dismissal.
Of course the fact that the employee has been convicted of an offence does not necessarily mean that the employee should be dismissed. It is open to the employer to ignore it whether it is spent or unspent under the rehabilitation rules.
Dismissal of an employee with two years’ service will be unfair it is found to be outside the ‘band of reasonable responses’ which means an employer will have to assess the individual case by having regard to a number of factors such as the seriousness of the offence and the relevance of the offence to the role.
This blog post was written by Elizabeth Ebrahimi and Jo-Anne McCartan-Cripps. For further information, please contact:
Elizabeth Ebrahimi, associate, Employment
T: 0161 836 7954