The rules on employing ex-offenders

Public opinion is driving Ched Evans’ future but employers must follow set principles

The controversy surrounding the football clubs who have attempted to sign Ched Evans, the former Sheffield United striker convicted of rape, highlights the difficulties of recruiting a high profile personality with a conviction. In his case, the impact of sponsors, fans and public opinion were relevant, and while this won’t happen in most employment situations, there are many issues that employers do need to be aware of in the law relating to employing ex-offenders.

Offenders

The Rehabilitation of Offenders Act 1974 introduced the concept over 40 years ago that ex-offenders sentenced to less serious penalties should, after a period of time, be considered rehabilitated and not obliged to disclose previous convictions which would be regarded as ‘spent’. The Act also stated that some occupations, for example, those involving working with children, would be exempt from its protection, meaning that even spent convictions for those wishing to undertake such roles would continue to be disclosable.

Amendments

In March last year the Act was amended so that most convictions now become spent in a shorter period of time. The amendments also increased the number of sentences that could become spent. Exempt occupations (those where convictions were always disclosable) were virtually unchanged by the amendments.

The changes were retrospective, so some ex-offenders who previously would have always had to declare their convictions now don’t have to and others have found their rehabilitation periods reduced. The rehabilitation period is determined by the length of the penalty awarded to the offender by the court and not by the nature of the conviction.

Enforcement

Although the 1974 Act makes it unlawful for an employer to refuse to recruit, or to dismiss, an employee because of a spent conviction, in reality there is not much employees can do to complain about their treatment, unless they satisfy the two-year service requirement for an unfair dismissal claim. This is good news for employers, but there are anomalies in the situation.

Case law

In a joined case, R(T) v Chief Constable of Greater Manchester, relating to job roles which were exempt from the 1974 Act, the claimants argued that disclosing minor convictions – some of which occurred when the person concerned was a child – was in breach of their rights to a private life under Article 8 of the European Convention on Human Rights. The Supreme Court agreed in a judgment last June (the case is now called R(T) v Secretary of State for the Home Department). However, even before this, the government introduced changes to remove some old and minor offences appearing on disclosures, and the Disclosure and Barring Service published its DBS Filtering Guide on these changes on 29 May 2013.

Criminal record check

Tricky issues can arise when an employer recognises that its checks from the Criminal Record Bureau – now the Disclosure and Barring Service – have not been carried out correctly and wishes to put matters right. As the 2014 changes are retrospective, dismissing an employee whose conviction now falls in the ‘spent’ category runs the risk of it being unfair and could give rise to a claim if the employee has two years’ service. The courts have held that the 1974 Act prevents employers relying on spent convictions as a reason for dismissal. Similarly, if an employer tries to argue there is a breach of trust and confidence because the employee failed to disclose a criminal conviction at the outset, it may be outside the band of reasonable responses for the employer to dismiss that employee if he or she has been trustworthy and competent in the role.

On the job

Where an employee is convicted of an offence during employment, the employer needs to be satisfied that dismissing the person is justified under the normal unfair dismissal provisions.  Often employment contracts exclude minor motoring offences as a reason for dismissal, and some contracts place an obligation on the employee to notify the employer of any conviction received during employment. As these will only just have been received they will, of course, not be spent. However, whatever contractual provisions employers put in place, they will not necessarily translate into a defence for unfairly dismissing (or not employing) an employee with a conviction.

Petaurum Solutions’ Comment

A complex area of employment law arena that needs careful handling by employers.  At Petaurum Solutions we are experts in ensuring your policies, processes and working practices not only comply with legislation but also are appropriate and practical for your business. Don’t put your business at risk of non-compliance, talk to us to see how we can help.

This information is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal, HR or benefits advice in any specific situation. Petaurum Solutions is not responsible for any actions taken or not taken on the basis of this information. Please refer to the full terms and conditions on our website.

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