This last week has seen a number of press stories regarding the issue of whether it would be right or wrong for a certain football club to re-employ one of their players who has now been released from prison.

Some have expressed the opinion that they would find it difficult to support a club that had a convicted rapist in the team whilst others have been keen to point out that he has served his time and should be entitled to continue his career. Whichever viewpoint you take the debate has provoked some strong emotions and has even led to threats of violence.

Whilst the involvement of a professional footballer might have sparked the media’s attention to this particular case it is certainly not a unique problem. Many employers have been faced with difficult decisions regarding employees who have been charged or convicted of criminal offences.

First of all it would be a mistake to just assume that there will automatically be fair grounds to dismiss the employee.

Acas guidance* states, “An employee should not be dismissed or otherwise disciplined solely because he or she has been charged with or convicted of a criminal offence. The question to be asked in such cases is whether the employee’s conduct or conviction merits action because of its employment implications.”

Even if the employee is in prison, it may not be as straightforward as you might think. Looking again at the Acas guidance it is suggested that where the employee is not “available for work because he or she is in custody or on remand ….employers should decide whether, in the light of the needs of the organisation, the employee’s job can be held open.”

Of course, with a long sentence it might be that the contract of employment will be regarded as frustrated meaning that there will be no dismissal, it will simply come to an end. Then there is also the nature of the criminal offence to take into account as it may make the employee completely unsuitable for the particular role, take for example someone with financial responsibilities who has been charged with theft.

When the employee is dismissed, one of the most common reasons cited by the employer is that the employee has brought the employer’s name into disrepute. Damaging the good name of the business could cause problems with customers, which leads us onto the other reason for dismissal that is commonly relied upon, ‘third party pressure’. Now this may be a reference to a particularly important customer who threatens to take their business away if the employee is not dismissed or it could be that work colleagues will refuse to work with a person convicted of this type of offence. Either scenario can be relied upon as a potentially fair reason for dismissal by the employer.

When considering job applicants the employer does not have to be concerned about unfair dismissal rights and employment protection. Subject to the employer not discriminating against any applicant they are generally free to choose which candidate is the best for the particular role. They can even ask the applicant whether they have ever been convicted of a criminal offence and if they answer ‘yes’ then the employer will be perfectly entitled to decide that they do not want to employ them.

However, the law** recognises that there may be a point in time when the applicant should be regarded as ‘rehabilitated’ and so should not have to declare their previous conviction even if directly asked by the prospective employer. The key issue will be whether the criminal offence is ‘spent’ and that will depend on the severity of the sentence. So for example a two year custodial sentence given to an adult may become spent after six years. The rehabilitation period being the period of the sentence plus a further ‘buffer period’ of four years, giving a total of six years. The less serious the offence, the shorter the rehabilitation period. So, where a conviction results in just a fine, a job applicant will not have to declare this if it was over a year before.

There is nevertheless, an important exception in relation to very serious offences. If a person is convicted of an offence and given a custodial sentence of four years or more then it will never be regarded as spent. Recognition perhaps that some offences are so serious that an employer should be able to make a decision as to whether they want to employ someone who has committed that offence, no matter when it happened.

This post was edited by Chris Davies. For more information, email blogs@gateleyuk.com.

*The Acas Guide: Discipline and grievances at work

**Rehabilitation of Offenders Act 1974

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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.