Receiving a criminal record whilst you’re in employment

Aim of this information

This information is designed to set out what you need to consider if you receive a criminal record whilst you’re in employment. It highlights your basic employment rights and some organisations that can provide you with additional information, advice and support.

Why is this important?

• Much of the disclosure information we provide is based around disclosing convictions obtained prior to applying for jobs.
• For further information on disclosing convictions prior to getting work see here.
• It’s important to know what your legal obligations are if you receive a criminal record whilst you’re in work and what the consequences could be if your employer becomes aware of it.

Introduction

If you receive a conviction whilst you’re employed, it is important that you are clear as to whether this is something that you will need to disclose to your employer. This document offers a brief guide as to how receiving a criminal record may affect your employment.

This is for information only; if you have any doubts about whether you should raise an issue with your employers or start legal proceedings, we would recommend that you seek legal advice.

(Throughout this information, we use the general phrase “conviction”. This should be interpreted as meaning caution, or conviction. In the event that cautions and convictions are dealt with differently, we will highlight this).

Do you legally need to disclose a new conviction to your employer?

Whether you have to disclose a conviction obtained during employment is not always clear; a lot will depend on what your contract of employment states.

If your contract says that you have a duty to inform your employer of convictions received during your employment, then this is pretty clear cut and a failure to do so would be treated as a breach of your employment contract. If your employer were to discover your conviction, you may be dismissed if you had not informed them of it.

For employers who don’t make it clear whether you should disclose convictions received during employment, then there is no legal obligation on you to do so. If your conviction were to be discovered, then this, on its own, would not be a reason for your employers to dismiss you. However, some employers may feel justified in dismissing you on the basis that they can no longer trust you based on your keeping your conviction from them.

If you receive a disposal that becomes spent immediately (i.e. a caution), then you should be able to rely on the Rehabilitation of Offenders Act and not disclose (as long as the role/position isn’t exempt from the ROA).

Is there anything else you should consider about disclosing your criminal record?

There are some situations where you would have no choice but to disclose to an employer. For example, if your job involved driving, then the loss of your driving licence would mean that if you were to say nothing, you may have to continue driving and would therefore be committing an offence every time you got behind the wheel of the car.

If your conviction leads to restrictions being put on you, e.g. a harassment conviction could come with conditions attached regarding locations you cannot go and/or people you cannot have contact with. This could affect your ability to do your job, and make it impractical to carry out your duties without committing a further offence.

If there is any chance (either through gossip, publicity or being subject to regular formal criminal record checks) that you will get found out, then you will have to weigh up the chances of dismissal against the likelihood of the employer finding out by themselves and holding both that fact and the conviction against you.

What action can your employers take?

Where a criminal offence is committed (or even alleged) in relation to something that has occurred at work or in the course of your employment, then your employer would be entitled to treat this as a disciplinary matter, although they are not usually under any obligation to do so. If disciplinary action does happen, then your employer will need to follow their usual disciplinary procedures.

The situation is slightly more complicated where the allegation/conviction is related to an incident that took place away from the work place and is entirely unconnected to your employment. However, the result may be the same.

Where an employer becomes aware of a criminal conviction, you should not be surprised if they begin disciplinary proceedings. There is a good chance that, especially in cases of dishonesty, or where the conviction is directly relevant to your employment, that you will end up being dismissed. This would be the case whether the incident took place at work or not. It could have been committed in another country or in a situation wholly divorced from your employment; an employer is still entitled to use it as a reason to terminate your employment, either by treating it as misconduct (most likely if the incident took place at work), or as a dismissal for some other substantial reasons (SOSR).

There could also be a statutory reason for companies to dismiss you. For example, where a person loses their driving licence due to a conviction and driving is a critical part of their job.

What factors will your employers take into consideration?

If the conviction is for something you did outside work, employers should consider what impact it will have on your suitability to do your job and your relationship with your company, colleagues and customers. For example, it might be reasonable to dismiss you if you had been found guilty of fraud outside work if part of your job is operating a checkout till in a supermarket. However, if your offence is for driving, it may not be a problem if driving does not form part of your job. They should also take into account your previous work record. If it is unblemished then it may be easier to overlook a conviction which is not work related.

Other factors that an employer may take into consideration could include:

• The image of the company (including the extent to which the issue is covered in the press, especially where it involves something serious, such as child sex offences)
• The potential threat you pose to fellow employees or customers and clients of the company (especially relevant where you have been convicted of violent or sexual offences)
• The likelihood that you will commit similar offences within your employment (especially where dishonesty is concerned)

What are the likely outcomes?

If you receive a custodial sentence then dismissal is likely to be the only option as you will no longer be capable of performing your contractual duties.

If your conviction leads to a non-custodial sentence, then the prospect of your retaining your employment may also appear unlikely, but it’s important to remember that you are still entitled to reasonable treatment from your employer. A criminal conviction should not automatically result in your losing your job and an employer should not immediately take this course of action. All employers have a legal duty to act responsibly, follow their own procedures and avoid a ‘kneejerk’ reaction.

Even when the staff handbook or company policy dictates that a particular act will justify dismissal, an employer must still carry out a proper investigation and decide whether, in the specific circumstances, they want to take a considered decision to dismiss.

What options are open to you?

If your employer were to consider taking some form of disciplinary action then you should avoid:

What can you do if you are dismissed?

The first thing would be to appeal the decision through your employer’s appeals process.

If this is unsuccessful, then you could consider taking your case to an Employment Tribunal. It is important to note that the law requires that an employee works for an employer for a minimum period before they can claim unfair dismissal. If your employment started before 6th April 2012 then this period is one year. If your employment started on or after this date, then you must complete two years of uninterrupted service before you can make a claim.

For further information regarding Employment Tribunals see here.

Personal experience

A recent legal case

A recent Employment Appeal Tribunal (EAT) in Ireland highlighted the options open to an employer when an employee receives a criminal conviction for misconduct outside the work place.

The claimant was absent from work on long-term sick leave when he received a suspended sentence for the sale and supply of drugs. When his employer found out, he was dismissed for gross misconduct and breach of trust. The Employment Tribunal had to consider whether the dismissal could be justified given that the event took place away from the claimant’s place of work.

The EAT noted that there is considerable uncertainty as to whether an employee’s conviction for a crime committed outside the workplace entitles the employer to dismiss the employee. The argument usually relied upon by the employer is that the bond of trust has broken down.

The EAT held that a dismissal for misconduct outside  the work place can only be justified where there is sufficient connection between the crime committed and the employee’s work, in such a way that it would make the employee unsuitable or capable of damaging the employer’s reputation. The employer has to demonstrate that it has a legitimate interest in the crime committed to the extent that the misconduct is disruptive to the business, employee relations or affects the reputation of the company.

Although this case was upheld and outside England & Wales, it demonstrates the general principle that still applies; if an employer is going to dismiss you for out of work misconduct, there must be a genuine connection between your offence and your employment. The connection must be such that it leads to a breach of trust and/or causes reputational and other damage to the company. If you have been dismissed whilst in employment and you believe you have the evidence to challenge the dismissal under the issues raised above, we would recommend that you seek legal advice.

More information

1. For practical self-help information – More information can be found on convictions and employment law.
2. To discuss this issue with others – Read and share your experiences on our online forum
3. Questions – If you have any questions about this, you can contact our helpline.

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