Open-access content Wednesday 13th July 2011 — updated 3.30pm, Tuesday 26th May 2020
There are limits to how far employers can go to check the criminal background of a prospective employee. How far can you go to check up on job applicants?
14 July 2011
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 handling money or are in a position of trust.
Asking for details that are irrelevant or excessive could potentially breach the data protection laws, although in practice it is rare for someone to bring a claim to enforce their rights.
For most jobs, employers are only allowed to ask for details of “live” or “unspent” convictions (most convictions become spent after a certain number of years). Candidates for these roles can simply refuse to answer questions about spent convictions even if directly asked.
To be sure that a candidate is telling the truth, ask them 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). This will provide details of any unspent criminal convictions or confirm that the candidate has none. Only the candidate can apply for the disclosure — it is not available to employers.
If the candidate does not have a clean record but the conviction is “spent” and the post is not covered by the Exceptions Order under the Rehabilitation of Offenders Act, the employer may not refuse the employment on the grounds of the spent conviction.
If the conviction is unspent, the decision to employ is at the discretion of the employer. Before rejecting a candidate because of their criminal record, it is best practice to consider carefully the nature of the conviction and whether it makes the individual unsuitable for the role. 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 when deciding whether or not to reject the candidate.
The Chartered Institute of Personnel and Development (CIPD) has produced guidance on employing ex-offenders, which recommends employers do not ask for details of convictions until interview stage. To manage expectations, advertisements or application forms should make it clear that details of criminal convictions will be requested at interview.
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 required where the role gives the employee an opportunity to have contact with children or vulnerable adults - for example, cleaners or caterers at a school or hospital. Employers in these fields must obtain an Enhanced Disclosure, as well as checking to see if the individual’s name appears on one of two lists of persons deemed to be unsuitable to work with either children or vulnerable adults, which are now administered by the Independent Safeguarding Authority. It is an offence to employ someone to work with children or vulnerable adults if they appear on one of these lists of barred individuals.
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.
If the offence happens at work - for example, the employee is stealing from the company - 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 they can dismiss. The employer only needs to show they have a genuine belief in the employee’s guilt which is reasonable based on the evidence gathered from a reasonable investigation.
Employers should decide on a case by case basis whether it is appropriate to ask about a candidate’s criminal history for a particular role. Criminal records checks should only ever form one part of any recruitment decision, along with seeking references and checking qualifications. Having clear job descriptions will also help identify whether a criminal offence is relevant and whether a candidate is suited to the role.
One of your employees has been stealing from the company and you are not sure who it is. After investigating the situation you narrow it down to a couple of staff members, but are not 100 per cent sure who is to blame.
What can you do?
This is a tricky situation. On one hand you do not need proof beyond reasonable doubt before you can fire someone for stealing, but on the other, you do need a genuine and reasonable belief that they are guilty. If 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.
Adam Rice is a specialist in employment law at City solicitors, Travers Smith LLP