Receiving disclosure of a criminal conviction: what now?

Receiving a job application or speaking to an existing employee who discloses a criminal conviction can leave employers unsure of the next step. The instinct may be to reject the applicant or take disciplinary action, but the legal position is rarely that straightforward.

For most roles, there is no automatic rule preventing someone with a criminal record from being employed. Unless the position requires a statutory criminal records check, employers should assess each situation on its own merits rather than adopting a blanket approach.

The starting point is to consider whether the conviction is relevant to the role. A conviction for driving offences may be highly relevant for someone employed as a delivery driver but have little or no bearing on an office-based position. Equally, the seriousness of the offence, how long ago it occurred, whether there is a pattern of offending and any changes in the individual’s circumstances should all form part of the decision-making process.

Taking a balanced, evidence-based approach will help employers make fair decisions while reducing the risk of discrimination or unfair dismissal claims. It is also important to understand the difference between spent and unspent convictions.

Where a conviction is unspent, employers will often have greater flexibility when deciding whether it is appropriate to recruit or continue employing someone, provided the decision is based on a genuine assessment of the risks associated with the role.

However, where a conviction is spent, the legal position is very different. In most cases, the law treats a spent conviction as though it had not occurred. Unless the role falls within one of the exceptions under the Rehabilitation of Offenders legislation, employers should not refuse employment or dismiss someone simply because of a spent conviction or because they failed to disclose it.

Employers should also remember that a criminal conviction disclosed during employment does not automatically justify dismissal. The key question is whether the offence affects the employee’s ability to perform their role safely, lawfully or with the level of trust required. In some cases, there may be little or no workplace impact. In others, particularly where safeguarding, financial responsibility or driving form part of the role, the implications may be much more significant.

Every case should therefore be considered individually. A structured risk assessment, careful consideration of the role and appropriate advice where required will place employers in a much stronger position than relying on assumptions or adopting a blanket policy.

Ultimately, the existence of a criminal record should not determine the outcome on its own. It is the relevance of that record to the role, together with the legal protections that apply, which should guide an employer’s decision.

Contact us at enquiries@121hrsolutions.co.uk and we can discuss any further queries you may have on this subject.

Receiving disclosure of a criminal conviction: what now?

121 HR Solutions Ltd