September 18, 2020

Ex-offenders and employment law

This post was written by: Ilinca Mardarescu

An estimated one third of the UK work-force can be classed as ex-offenders.  But many employers are still not familiar with how to deal with ex-offenders in the workplace.

Unspent Convictions

A (potential) employee has very little legal protection when applying for work where they have an unspent conviction.  In reality of course, some convictions are spent in prison so the offender would not be applying for an employed role.  However, an offender who has been sentenced to, say, a suspended sentence and a certain number of hours community service falls into this category also.   Theirs would be an unspent conviction and an employer would need to decide whether to offer a role to someone who has an unspent conviction or whether to terminate their employment if they are already employed.

Spent convictions

It is unlawful for an employer to subject you to any ‘prejudice’ because of a conviction if it is now spent (Rehabilitation of Offenders Act (ROA) 1974). In practice, this should not arise very often, as it would be difficult for an employer to discover a spent conviction without a standard or enhanced Disclosure and Barring Service check (which should only be done for roles exempt from the ROA), or through an employee’s own admission.

The Rehabilitation of Offenders Act 1974 (ROA) allows most convictions to be considered spent after a set period of time. Unless one receives a prison sentence of over 4 years or has any type of indefinite order, the conviction will become spent at some point.

Once the conviction is spent, this entitles (potential) employees (for applicable jobs), to portray themselves as somebody who has never been convicted, i.e. it allows employees to “lie” by not mentioned any spent convictions (subject to some specific exceptions).  If a contract of employment asks a prospective employee to disclose their convictions, they are simply not required to disclose any that are spent (see section 4(3) of the ROA). As a general rule, there would be no breach of contract in such situations for failure to disclose.  Indeed, if an employee was dismissed for failing to disclose a spent conviction, they may have legitimate grounds to bring a case of unfair dismissal.

Spent convictions should not be used as evidence in employment tribunals, without the consent of the person concerned and questions should not be asked that would elicit or hint at such information.

Fair dismissals and criminal convictions

Where an employee has been arrested for, or has been charged or convicted with a criminal offence, an important issue for an employer to consider is whether the alleged offence/conviction directly affects an employee’s work. If it does, employers then need to consider whether they genuinely and reasonably believed that the individual was in fact guilty of the offence in question before deciding whether or not to dismiss.  Importantly, a criminal charge or conviction does not, of itself, usually justify unfair dismissal – or indeed even disciplinary action itself. It must affect the employee’s ability to perform their job.

To be regarded as fair, the reason for the dismissal must be for: 

  • a reason related to an employee’s conduct;
  • a reason related to an employee’s capability or qualifications for the job;
  • because a statutory duty or restriction prohibits the employment continuing; or
  • some other substantial reason.

The employer must also have acted reasonably in treating that reason as sufficient for dismissal.

Sex Offenders Act 

The Sex Offenders Register contains the details of anyone convicted, cautioned or released from prison for sexual offences against children or adults since September 1997 (when it was set up). 

Under the Sex Offenders Act 1997, as amended by the Sexual Offences Act 2003, all those convicted of sex offences must register with the police within three days of their conviction or release from prison. This is monitored by the police, who receive notification from the courts following conviction, and both the prisons and probation service following the persons release into the community.

Disclosure of Criminal Convictions Act

Head teachers, doctors, youth leaders, sports club managers and others, including landlords, are notified of the existence of an offender on a confidential basis. This information dictates the type of employment that sex offenders can apply for.  Anyone convicted as a sex offender is barred from working with children and the vulnerable.

For any assistance on this or other employment law matters, please contact our Head of Employment, Ilinca Mardarescu