Employers often face the challenge of handling undisclosed criminal convictions when hiring or managing employees. This issue is particularly complex due to the legal and ethical considerations involved. Understanding the difference between spent and unspent convictions, the legal obligations of employers and employees, and the potential impact of criminal records on employment is crucial for employers to navigate this sensitive area effectively.
Understanding Spent and Unspent Convictions
Before delving into how to handle undisclosed criminal convictions, it’s important to understand the difference between spent and unspent convictions. In the UK, under the Rehabilitation of Offenders Act 1974, certain convictions become ‘spent’ after a specified period. This period depends on the sentence given, not the offence committed. Once a conviction is spent, the convicted person does not have to disclose it in most situations, such as when applying for most jobs or insurance.
So, what is a spent conviction? A spent conviction is a criminal conviction that, after a certain period, is considered to be ‘forgotten’ for most purposes. This means that the individual does not have to disclose it to potential employers, and employers cannot refuse to hire someone based on a spent conviction. Examples of spent convictions could include minor offences that resulted in a fine or community service.
On the other hand, what is an unspent conviction? An unspent criminal conviction is one that has not yet reached the specified period and must be disclosed when asked. Unspent offences could include serious crimes or those that resulted in a prison sentence of more than four years. The unspent conviction UK law stipulates that these convictions must be disclosed when applying for certain jobs, such as those involving work with children or vulnerable adults.
Failure to Disclose and the Impact on Employment
Failure to disclose an unspent criminal conviction can have serious implications for both employees and employers. For employees, it could lead to dismissal if the truth comes out later. For employers, it could result in legal issues, particularly if the undisclosed conviction could pose a risk in the workplace.
So, can you be fired for having a criminal record? The answer is not straightforward. It depends on the nature of the conviction, the job role, and whether the conviction was disclosed or not. If an employee fails to disclose an unspent conviction and the employer later finds out, they may have grounds for dismissal. However, firing someone simply for having a spent conviction could be considered unfair dismissal.
Checking Criminal Records
Employers can carry out a criminal conviction check to verify an applicant’s criminal history. However, they must have the applicant’s consent to do so. In the UK, this is usually done through a Disclosure and Barring Service (DBS) check. It’s important to note that spent convictions will not show up on a basic DBS check. However, certain roles require an enhanced DBS check, which may reveal spent convictions.
So, does gross misconduct go on your DBS? Gross misconduct, such as theft or violence at work, could potentially lead to a criminal conviction, which would then appear on your DBS check. However, not all instances of gross misconduct result in a criminal conviction.
Disclosing Criminal Convictions to Employers
When it comes to disclosing criminal convictions to an employer, honesty is usually the best policy. If asked, an applicant or employee should disclose any unspent convictions. However, they do not have to disclose a spent conviction unless applying for certain roles.
So, do I have to disclose a spent conviction? Generally, no. However, there are exceptions for certain roles, particularly those involving work with children or vulnerable adults. In these cases, all convictions, spent or unspent, must be disclosed.
How to Handle Undisclosed Criminal Convictions
Employers should have clear policies in place for handling undisclosed criminal convictions. This should include guidance on how to disclose criminal convictions to an employer, what offences go on a criminal record, and the potential impact of a criminal record on employment.
- Be clear about your policies: Make sure your policies on criminal convictions are clear and communicated to all employees. This should include information on what is considered a criminal record, what is an unspent conviction, and the potential consequences of failing to disclose an unspent conviction.
- Provide training: Ensure your HR team is trained to handle issues related to criminal convictions. They should understand the difference between spent and unspent convictions, how to carry out a criminal conviction check, and how to handle situations where an undisclosed conviction comes to light.
- Handle each case individually: Each case should be handled on its own merits. Consider the nature of the conviction, the role of the employee, and any potential risks before making a decision.
- Seek legal advice: If you’re unsure how to handle a situation, seek legal advice. This is particularly important if you’re considering dismissing an employee due to an undisclosed conviction.
Handling undisclosed criminal convictions can be a complex issue for employers. However, with a clear understanding of the law, robust policies, and a fair and consistent approach, it’s possible to navigate this sensitive area effectively.
