Employee’s Failure to Disclose Criminal Conviction

Understandably, many employers will want to establish whether a prospective employee is trustworthy and of good character before taking them on. Even where criminal record checks are not a mandatory job role requirement, employers may still want to make any offer of employment conditional upon an assessment of a candidates’ criminal history. They may also want to be told of any convictions that arise after someone is hired, making disclosure of convictions a condition of employment, so as to avoid bringing their business into disrepute.

The following guide looks at what the law says when it comes to employees declaring criminal convictions to employers, and what action can be taken against an individual for any failure to disclose a criminal conviction, either during pre-employment checks or post-recruitment.

Are you allowed to ask job applicants about criminal records?

Under the Rehabilitation of Offenders Act (ROA) 1974, even though job applicants are afforded certain protection against disclosing spent convictions, employers are still entitled to ask applicants to disclose details of any unspent convictions as part of their recruitment process, while ensuring any recruitment discrimination risks are mitigated.

Asking about someone’s criminal history could form part of the written application process or be verbally explored at interview. Ideally, however, only successful candidates should be asked about their criminal record, so that data isn’t being unnecessarily obtained on all applicants. At this stage, the employer can ask the candidate to complete a criminal record declaration form or request a Disclosure and Barring Service (DBS) check.

The type of DBS check that an employer can request will depend on the level of disclosure required for the position applied for. However, all employers can ask for a basic check of a candidates’ criminal record. This will show any unspent convictions and conditional cautions.

Do employees have to declare criminal convictions?

Applicants do not have to voluntarily disclose any criminal convictions. This means that if an employer wants to know about any criminal history, they need to ask. Further, if a conviction is spent, an applicant usually has a legal right under the provisions of the ROA not to disclose that conviction, even if expressly asked by an employer to declare any criminal past.

The law seeks to balance the right of offenders to rehabilitate and move on with their life, as against the rights of employers who may be justified in finding out about a person’s criminal history so as to protect their business and employer-brand.

Whether an applicant is obliged to disclose a criminal record will therefore depend on:

• if a conviction is unspent: for every conviction there are prescribed rehabilitation periods, depending on the age of the offender, and the length and type of sentence imposed. During the currency of this period, the conviction will be classed as “unspent”. For serious offences, where the person has received a custodial sentence of more than 4 years, the conviction will never be spent. However, for lesser offences, such as where a fine was imposed for an adult offender, the rehabilitation period may be as little as 12 months from the date of conviction.
• if a conviction is spent: for a person who has been convicted of a criminal offence but doesn’t re-offend within the prescribed rehabilitation period, their conviction becomes “spent”. The offender will then be treated as rehabilitated, as if they had never committed the offence in the first place. In most circumstances, an applicant is not legally obliged to reveal or admit the existence of a spent conviction to an employer, effectively wiping the slate clean.

This means that any applicant with an unspent conviction must disclose this fact to a prospective employer if asked about their criminal history, regardless of the role applied for. For those with spent convictions, at least for most positions, the applicant can withhold that information from an employer, treating themselves as having no criminal record.

What are the rules on spent convictions and employment?

Under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, certain roles and occupations, typically those involving positions of trust or sensitive areas of work, are exempt from the statutory protection afforded to applicants not to disclose spent convictions. This includes work with children or in health and social care, work in law enforcement and the legal system, or in high-level financial positions. This is in recognition that fuller disclosure of an applicant’s criminal history is relevant for these types of employment activities.

If an employer is recruiting for a post or position ‘exempt’ from the ROA, they’re entitled to ask an applicant to disclose any spent convictions, although minor historic convictions may be protected. Employers are also entitled, as a minimum, to request a standard DBS check. A standard check, such as for applicants in the legal or financial sector, will show any spent and unspent convictions, cautions, reprimands and warnings held on the police national database. An enhanced check, for those working with children or vulnerable adults, will reveal the same details as a standard check, together with any relevant information held by local police forces.

In the context of excepted roles, employers will then need to determine whether any spent or unspent criminal convictions are relevant to the role to be undertaken, taking into account any sector-specific guidance. Each employer will be best placed to consider whether a person’s convictions make them unsuitable for a particular job, although the DBS Code of Practice requires registered employers to have a fair and clear policy towards employing ex-offenders, and not to discriminate automatically on the basis of an unprotected conviction.

In the context of non-excepted posts or positions — where the applicant is legally entitled to withhold the fact or existence of any spent conviction — an employer cannot refuse to employ that person where information about their past criminal history comes to light. This is because it’s unlawful for an employer to subject an employee to any prejudice because of a spent conviction. In practice, this will rarely arise, as employer’s shouldn’t ask about spent convictions, nor can they undertake anything other than a basic DBS check, for non-excepted roles. However, where an applicant admits to having a criminal record or the employer has found about this from a third party, this information should be disregarded.

What are the rules on unspent convictions and employment?

Even though applicants must disclose any unspent convictions when asked to do so, having a criminal record is not necessarily a bar to employment. This is simply the information that an employer is entitled to take into account when deciding on the applicant’s suitability for a role.

In many cases, employers will choose not to adopt a blanket refusal policy for anyone with a criminal record, but rather will consider potential candidates on a case-by-case basis. Where offences are not relevant to the role to be undertaken by the individual, employers can choose to overlook any unspent convictions. Other factors that employers may consider include:

• the seriousness of any offence disclosed
• the individual’s age when the offence was committed
• the length of time since any offence took place
• whether there’s a pattern of offending behaviour
• the circumstances surrounding the offence and any mitigating factors
• whether the individual’s circumstances have changed since the offending behaviour.

However, it’s open to an employer to recruit whom they want, provided they don’t take into account spent convictions where not legally entitled to do so, and provided they don’t discriminate on grounds of a protected characteristic, such as age, sex, disability or race. There is no legal concept of discrimination on the basis of having an unspent criminal record, where it’s a matter for the employer to exercise their discretion when making hiring decisions.

Can you withdraw a job offer for failure to disclose a criminal conviction?

In the context of excepted roles, an employer may withdraw a job offer for any failure to disclose a criminal conviction, spent or unspent. This is because full disclosure involving positions of trust or sensitive areas of work is a strict requirement for safeguarding reasons. The only exception to this is where a spent conviction is protected.

Equally, an employer would be justified in withdrawing a job offer where a candidate fails to disclose any unspent convictions for a non-excepted role, provided the individual has been asked to make a criminal record declaration, either verbally or otherwise, during the recruitment process. This is because any failure to disclose unspent convictions goes to the issue of honesty, even where the conviction is irrelevant to the role to be undertaken, or so minor that it would have been unlikely to undermine an applicant’s suitability for a role.

Still, it’s important to remember that prospective employees are not legally required to disclose any spent convictions for a non-excepted job role, such that they cannot be said to be dishonest in failing to do so. The employer is not entitled to ask about spent convictions, and if a spent conviction comes to light, this must not be taken into account in any hiring decision.

Can you dismiss someone for failure to disclose a criminal conviction?

In the same way that any failure to disclose a spent criminal conviction would not generally provide fair grounds for excluding someone from employment, it cannot usually be used as a fair basis for bringing employment to an end. However, in the context of any failure to disclose an unspent conviction, whether or not an employer can justify dismissal will depend on all the facts.

If there’s been a deliberate attempt to conceal an unspent criminal conviction, for example, where an employee has been asked to disclose any unspent convictions during the recruitment process, or disclosure of a subsequent conviction is a condition of employment, this could be treated as a serious misconduct matter for which dismissal may be justified. Conduct is one of the potentially fair reasons for dismissal as set out under the Employment Rights Act (ERA) 1996. The position is therefore relatively straightforward here, provided the employer follows a fair disciplinary procedure to avoid any allegations of unfair dismissal.

In contrast, any failure to disclose an unspent conviction where not asked or required to do so, such that no issue of dishonesty or concealment arises, the position becomes more complex. Under the ERA, the employer could still have a potentially fair basis for dismissal, based on “some other substantial reason”, especially if the criminality is relevant to the employee’s role or carries a significant reputational risk for the employer’s business. However, the employer must be able to show that the employee’s actions were serious enough to justify dismissal.

Where the employee has not yet accrued 2 years’ continuous service, they will not be eligible to claim unfair dismissal. In cases, however, where the qualifying service requirement is met, the employer must ensure that they conduct a full and fair investigation, and act reasonably in all the circumstances, having regard to the nature of the conviction and any mitigating factors.

Need assistance?

DavidsonMorris’ team of HR specialists and employment lawyers can help with all aspects of workforce management, including pre-employment checks and vetting procedures and advice on your options if an employee is convicted of a crime while employed by your organisation. For specialist guidance, speak to our experts.

Failure to disclose a criminal conviction FAQs

Last updated: 20 September 2021