Where does the law stand regarding criminal record checks for potential employees? Frances Butler and Georgina Lawrence explain

Employers do not have an unlimited right to information about the criminal records of job applicants, employees or contractors. Instead, the law aims to strike a balance between the successful rehabilitation of offenders and recognition of the need for disclosure of criminal offences in some circumstances.

Background

Key legislation in this area is the Rehabilitation of Offenders Act 1974 (ROA), which provides that some convictions become “spent” if the individual does not re-offend during a specified period. Individuals with spent convictions may say they have a clean record even where employers ask directly about spent convictions or impose a contractual requirement to disclose them. The Data Protection Act 1998 (DPA) is also relevant. Under the DPA, information about criminal records is “sensitive personal data” and there are particular safeguards around the processing (i.e. any use, from collection to destruction) of such data. There may also be employment law consequences if employers dismiss staff or withhold employment based on somebody’s criminal record.

Recruitment

The simplest way to find out if somebody has a criminal record is to ask him/her during the recruitment process. Employers should make it clear early on that vetting will take place and how it will be conducted. It is best to request information once an applicant has been chosen for the job, by making the offer of employment subject to satisfactory background checks. Requesting information from all applicants at an early stage in the recruitment process may be deemed excessive and disproportionate. However, employers cannot insist on the disclosure of spent convictions and failure to disclose them is not a lawful ground for dismissal or withholding employment. If this is important to an employer, they should consider whether they have lawful grounds for accessing this information through the Disclosure and Barring Service (previously the CRB check).

What to do?

If it is discovered that a prospective employee has a criminal record, the employer should assess the risk with regard to their business and the specific role. Other ways of assessing an individual’s suitability, such as checking qualifications and references, ensuring application forms and interviews are fit for purpose and making effective use of probationary periods, should be considered.

Existing employees

Employers sometimes discover that an existing employee has a criminal record. If the employee has failed to declare relevant information on recruitment, there may be grounds for disciplinary action. This might also apply if the employee has gained a criminal record since starting work, but has failed to comply with a continuing contractual obligation to disclose any new convictions. Generally speaking, the ACAS code of practice on discipline and grievances states that employees should not be dismissed or otherwise disciplined solely because they have been charged with or convicted of a criminal offence. Employers should instead consider the effect on the employee’s ability to do their job and their relationships with clients and colleagues. If dismissing for misconduct, employers must show that they have a genuine belief in the misconduct, based on reasonable grounds and supported by a reasonable investigation. Even where criminal conduct has no bearing on employment, the employee might be unavailable for work because they are on remand or in custody. In those circumstances, employers should consider whether they can hold the role open in light of organisational needs. Alternatively, off-duty conduct (e.g. drink driving) could lead an employee to lose a licence that is essential for the lawful performance of the job. In that case, alternative employment should be considered before dismissal. Dismissal may be possible in either case, but employers should still ensure they have a fair reason (possibly “some other substantial reason”) and have followed a fair process, including allowing employees to make representations and considering mitigating circumstances.

Conclusions

There are many steps employers can take to ensure an applicant’s suitability for employment. However, employers should balance their rights to information with individuals’ rights to privacy and fair treatment and should be careful how they treat any information received regarding both job applicants and existing employees who acquire criminal records.

Frances Butler is an associate in the human resources group and Georgina Lawrence is an associate in the commercial law practice group of Eversheds.