What to do if an employee has a criminal past

There are many attributes and skills an employer may look out for when hiring. Perhaps they want someone with creative flair, someone who is punctual and reliable, or a keen problem solver. But, what about someone with a criminal conviction? Here, Alan Price, CEO of BrightHR explains that it’s necessary to understand how different types of convictions can impact on various jobs.

While this is unlikely to be at the top of any employer’s wish list, it’s important to note that a conviction does not and should not mean a person is unable to do a good job.

Timpson is one of the UK’s largest employers of exoffenders, with 10% of the workforce having served time. Founder and CEO James Timpson makes no secret of his support and says employing ex-offenders has contributed significantly to the business’s success and positive reputation.

So what happens if you’ve just found out one of your employees has a criminal past?

Usually spent convictions – those where a certain period has passed since the conviction – do not need to be disclosed. It’s also unlawful for employers to refuse to hire someone because of a spent conviction. That’s why it’s best to err on the side of caution and avoid asking for such details when hiring.

However, there are certain roles, for example, solicitors, accountants, teachers, etc. where it is a requirement that all spent convictions be disclosed during the application processes, and applicants may be subject to a criminal record check, like a DBS check.

If someone is already employed when you find out that they have a conviction that is considered spent in the eyes of the law, it may be that you feel their position is untenable due to the nature of their work and details of their conviction. However, it is automatically unfair to dismiss someone because of a spent conviction if they have been employed for more than two years.

Protection against automatic unfair dismissal normally applies from the first day of employment but there are a few exceptions to this, and dismissal for a spent conviction is one of them. This means that there is little protection for employees against dismissal for a spent conviction within their first two years of employment. Because of the rehabilitation of offenders law, it is unlawful to refuse someone work because of a spent conviction, but once they are already employed, their protection against dismissal starts at the two-year point.

A recent study found that one in three employers would reject a candidate with a criminal record, but it’s important for employers to challenge this bias. Employers could be missing out on valuable employees by automatically discarding applications from candidates with convictions. This could be especially costly given the current challenges in recruitment.

Employers should recognise the success of the exoffenders recruitment programme and take advantage of the support and resources available to them through it.

Putting aside bias against people with a criminal past can help employers support their local communities whilst also meeting the needs and demands of their business.

To discount those with past convictions not only carries the risk of claims being brought against employers, but it also limits the talent pool and overlooks the value of inclusivity and equality.