How do you answer this – “Have you ever been dismissed or subject to disciplinary action?’”

We recently heard from someone who, about 5 years ago, was dismissed from his job for gross misconduct following a criminal conviction, even though the offence was committed outside of work.

Fortunately, he found another job almost immediately and has worked there ever since. Although he enjoys the work and has been promoted a couple of times, he believes that there are few further opportunities for progression added to which, the pay is relatively low.

Now that his conviction is spent, he’d like to apply for a new job. However, although he doesn’t have to disclose his spent conviction for most jobs, he’s found that many application forms ask the following question:

Have you ever been dismissed or subject to disciplinary action?’

He didn’t feel that he would be able to explain his dismissal without going into detail about his conviction which, legally, he isn’t required to do.

What would you do?

1. Tick the ‘no’ box on the application form which might seem like lying
2. Be honest and feel like you’re having to disclose your spent conviction

Is there a third option?

This isn’t the first time we’ve come across this.

Having successfully secured a job, individuals will often worry that if they apply for other jobs, their previous conviction may come to light or, they will need to disclose it to a new employer and risk being judged all over again. It’s often easier to ‘stay put’.

In this case, however, the Rehabilitation of Offenders Act 1974 (ROA) would be able to offer him some protection, especially as his conviction is spent and the jobs that he’s applying for are covered by the Act. Section 4(2) of the Rehabilitation of Offenders Act states:-

The person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question’.

The key phrase here is “circumstances ancillary to a spent conviction”.

This essentially means that if an application form asks a question about being dismissed or being subject to disciplinary action, which came about as a result of conviction that is now spent, the ROA allows you to say “no” to that question and not be penalised.

In practice, if you find yourself in similar circumstances to the one explained above, you should think about whether, if you don’t tell them, whether the employer might find out about your dismissal or disciplinary action in some other way. If you think they might, although you don’t legally need to, you may choose to still tell them but then explain it relates to a conviction that is spent now.

For more information

• For practical self-help information – Find out more information on disclosing to employers
• Questions – If you have any questions about this, you can contact our helpline