In depth: Checking your employee's criminal record

Does your new recruit have a criminal record? Do you have a right to know? Adam Rice advises on employment law

One of the most common security breaches is an internal attack from an employee who decides to steal information or harm the company because it has given them notice to leave.

That threat has been taken seriously by vendors supplying products to monitor and block malicious behaviour. But on the general question of whether the newly recruited member of staff or the colleague opposite you has a criminal record, the process is more complicated.

Individuals have the right to choose the information they want to reveal but there are also the rightful concerns of the employer to know who they are employing.

How far can employers go to check the criminal background of a prospective employee?

This issue has come under the spotlight, in the wake of claims that police are keeping records for too long and handing over too much information to prospective employers.

Here we look at some frequently asked questions about criminal records including: how far can you go to check up on job applicants, what if a candidate lies about their criminal history and what should you do if an employee is charged with or convicted of a criminal offence.

Can you ask job applicants about their criminal history? 

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 so 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.

Assuming it is relevant, 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.

However, there are some specific jobs where employers can ask about both spent and unspent convictions - including doctors, nurses, barristers, solicitors, accountants, teachers, and jobs which are regulated by the Financial Services Authority or involve access to children or vulnerable adults.

How do you know if the candidate is telling the truth?

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 - it is not available to employers.

If the role is one where the employer is entitled to ask for spent and unspent convictions, the employer can check this information using a Standard Disclosure from the Criminal Records Bureau (CRB).
The application is made by the employer, who must register with the CRB, or an umbrella body that is registered with the CRB, and comply with a code of practice designed to ensure that information disclosed is used fairly and confidentially.

For certain jobs involving greater contact with children or vulnerable adults, additional information from police records (like cautions and warnings) is also available and can be obtained by employers through an Enhanced Disclosure from the CRB. Again, the employer has to be registered with the CRB or an umbrella organisation for this.

What if the candidate does not have a clean record? Can you reject them?

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.

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.

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 an employment claim.

When is the best time to ask about a candidate's record?

The Chartered Institute of Personnel and Development has produced guidance on employing ex-offenders, which recommends employers do not ask for details of convictions until the interview stage.

To manage expectations, advertisements, application forms and invitations to interview should make it clear that details of criminal convictions will be requested at interview. If, based on the interview, you decide to make an offer, this should be conditional on the criminal records checks coming back clear.

What if you offer someone the job but subsequently discover they lied about their criminal record?

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.

Are there any roles where you must do background checks?

Yes, criminal records checks are compulsory for most people working with children or vulnerable adults - for example, teachers and social workers. Checks are also required where the role gives the employee an opportunity to have contact with children or vulnerable adults - for example, IT technicians 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.

What about employees in the financial services industry? 

Criminal record checks are not compulsory for financial services employees, but they are common in the industry. How far you go depends on the nature of the role you are recruiting for.

Guidance from the Financial Services Authority recommends that employers conduct criminal records checks for anyone seeking "approved person status" and employers in this situation should ask for both spent and unspent convictions. There will be other roles in the industry where it is appropriate to only ask for unspent convictions.

What if an existing employee is charged with or convicted of a criminal offence?

Being charged with or convicted of a criminal offence is not itself a reason for dismissal.

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 company, colleagues and customers. For example, it might be reasonable to dismiss someone found guilty of fraud outside work if part of their job is operating a checkout till, but it might be excessive to dismiss them for a traffic offence if driving does not form part of their role.

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 £70,000.

What if the offence was committed at work?

If the offence happens at work - for example, the employee steals 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 based on the evidence gathered from a reasonable investigation.

So, should you use criminal records when hiring new staff? Employers should decide whether it is appropriate to ask about a candidate's criminal history for a particular role.

Criminal records checks should only ever form part of a recruitment decision, along with seeking appropriate 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. Using probationary periods effectively may be more helpful in assessing an individual's suitability.

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