Has your employer or a prospective employer asked about your criminal record history? Read on to learn more about an employer’s right to request such information and the obligation of employees/prospective employees to provide it.
The law seeks to provide a balance between rehabilitating people with criminal records and protecting certain groups of people from those who have committed certain offences, so whilst the general position is that spent convictions do not need to be disclosed, there are exceptions.
What are the exceptions?
If the role is included within what is known as the ‘Exceptions Order’, a person may legitimately be asked to disclose spent convictions in addition to any that are unspent. The excepted occupations fall into five broad categories: –
• Professions (such as doctors and lawyers)
• Those employed to uphold the law (such as police officers or judges)
• Certain regulated occupations (such as financial services and taxi drivers)
• Those who work with children, provide care services to vulnerable adults or who provide health services
• Those whose work means that they could pose a risk to national security (such as air traffic controllers)
How may an employer request information about a person’s criminal record?
There are two ways in which an employer can request information, these are: –
• Asking the person directly about their criminal convictions or asking the person to obtain a basic certificate from the Disclosure and Barring Service (DBS).
• Applying for either a standard certificate or an enhanced certificate through the DBS.
Only registered bodies can apply for enhanced or standard disclosures and to be eligible for either check the role must be included in the Exceptions Order.
What information is contained within each certificate?
Basic certificates contain information about a person’s unspent convictions. Standard and enhanced DBS certificates will disclose convictions (both spent and unspent), cautions, (both spent and unspent), police reprimands and warnings. An enhanced certificate will also include relevant police information (information which the Chief Officer reasonably believes to be relevant) and, where relevant, any information stored about a person on statutory lists (containing details of people who are considered unsuitable to work with children or vulnerable adults).
When can employers ask for information about a person’s criminal record?
Most employers want to ask prospective employees about their criminal record history during the recruitment process. Ideally this should be done once a successful applicant has been chosen and the employer wishes to offer employment subject to satisfactory background checks. Most spent convictions do not need to be disclosed to an employer even when there is a direct request for that information or a contractual right to disclose. However, under the Exceptions Order a person may legitimately be asked whether they have any spent convictions, provided the questions are asked for the purpose of assessing a person’s suitability for the role. At the time of asking the questions, the person must be informed that they are obliged to disclose spent convictions. A failure to answer will be a valid reason to withhold employment or to dismiss, as will a failure to give truthful information.
What discretion do employers or prospective employers have?
It is important to ensure that persons with certain convictions should not undertake certain types of work. If the position falls within the Exceptions Order then the employer may make its own judgement, unless there is industry guidance or sector-specific regulation which precludes the person being appointed to a particular role. For example, a person may not be employed as a teacher if their name appears on a barred list. Otherwise employers cannot take spent convictions into account but may take unspent convictions into account.
Employers should consider for example whether the conviction is relevant to the position, the seriousness of the offence, the length of time since the offence was committed, whether there was a pattern of offending, whether the person’s circumstances have changed since the offending behaviour, the circumstances surrounding the offence and any explanation offered by the individual. Employers should be cautious about a blanket ban on employing ex-offenders. Employers can instead carry out risk assessments by checking qualifications, taking up references and setting probationary periods.
What protection do individuals have from discrimination arising out of their criminal history?
Unless the role falls within the Exceptions Order, individuals cannot be prejudiced for failing to acknowledge or disclose a spent conviction (this would include a refusal to employ or offer promotion). It is also not a lawful ground for dismissing or excluding any person from any role and employees who are dismissed on this ground may bring a claim for unfair dismissal.
Employers cannot use knowledge of spent convictions as grounds for excluding or dismissing a person from employment.
If a criminal record is discovered after a person is appointed this is not necessarily a proper ground for dismissal unless the Exception Order applies.
If a person lies about a criminal record the employer might try and terminate the relationship for breach of trust and confidence. However, the employer will need to be careful particularly if the employee has sufficient qualifying service for a dismissal (i.e. has been employed 2 years or more) and has otherwise shown themselves to be trustworthy and competent.
How can LincsLaw help?
For specific advice please contact us on 01522 440512 or 01522 440515 (direct dial) or visit our website at www.lincslaw.co.uk.
Specialist Employment Solicitor
Lincs Law Employment Solicitors