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Employers are entitled to ask candidates about their criminal records but there are limits on how far you can go. Asking if someone has any prior convictions is an invasion of privacy and you should only do it if it is relevant for the role - for example if they are going to be on the till or are in a position of trust. Asking for details that are irrelevant or excessive could potentially breach data protection laws.
Assuming it is relevant, for most jobs, employers are only allowed to ask for details of 'live' or 'unspent' convictions. Candidates for these roles can simply refuse to answer questions about spent convictions even if directly asked.
The easiest way to check is to ask the candidate to produce a formal record of their criminal history. This can be done by asking them to obtain a Basic Disclosure from Disclosure Scotland (which also covers England and Wales). The Basic Disclosure will provide details of any unspent criminal convictions or will confirm that the candidate has none. Only the candidate can apply for the disclosure.
Employers are entitled to reject a candidate on the basis of their criminal record. However, it is best practice to consider carefully the nature of the conviction and whether it makes the individual unsuitable for the role, rather than having a blanket ban on hiring ex-offenders. Consistent with this, the CRB has published guidance that advises employers not to treat criminal convictions as an absolute bar to making an offer, but to consider the circumstances of the offence and the relevance to the role. However, an employer who nevertheless decides not to make a job offer because of a candidate's unspent conviction (or because of a refusal to disclose details of unspent convictions) is unlikely to face any employment claims.
The Chartered Institute of Personnel and Development recommends employers do not ask for details of convictions until the interview stage. To manage expectations, advertisements or application forms should make it clear that details of criminal convictions will be requested at interview. Job offers should be conditional on the criminal records checks coming back clear.
If, shortly after hiring someone, you find out that they lied about an unspent conviction, you would usually be justified in dismissing them as this would be a serious breach of trust. By contrast, dismissing an employee for failing to disclose a spent conviction will usually be unfair. Dismissal is also likely to be harder to justify if the employee has had several years of loyal and trustworthy service by the time you discover the lie, unless it is so serious that you genuinely would not have hired them had you known the truth.
Criminal records checks are compulsory for most people working with, or who have access to, children or vulnerable adults - for example, teachers and social workers.
Unfair dismissal claim
If an existing employee is charged with, or convicted of, a criminal offence, you may be able to fire them. But if the charge is for something the employee did outside work, you should always consider what impact the charge or conviction will have on the employee's suitability to do their job and their relationship with the business, colleagues and customers. An employee dismissed for an offence committed outside work that has no impact on their job could bring an unfair dismissal claim and seek compensation of up to a maximum of around £70,000.
But if the offence happens at work then the employer needs to conduct an investigation and hold a disciplinary hearing before making a decision to dismiss. If the allegations are proven, then dismissal will usually be justified. The employer should conduct its own investigation regardless of whether or not the police intervene. The employer does not usually have to wait until the outcome of the criminal trial before proceeding, as this could take several months. If the employee is dismissed and later acquitted at trial, this would not necessarily make the dismissal unfair. Unlike a criminal case, an employer does not have to be satisfied beyond reasonable doubt that the employee is guilty before dismissal. The employer only needs to show it has a genuine belief in the employee's guilt which is reasonable based on the evidence gathered from a reasonable investigation.
Finally, if, following an incident, a thorough investigation fails to reveal the culprit, it can sometimes be fair to dismiss more than one employee based on a reasonable suspicion short of actual belief. For example, if money was taken from a safe that only two employees could possibly access, it would generally be fair to dismiss both if you had reasonably conclusive proof that it had to be one of them. ?
? Adam Rice is a specialist in employment law at City solicitors, Travers Smith LLP