This is a short information page about making a claim for wrongful dismissal. The aim of this page is to provide details of a possible employment claim which doesn’t require a claimant to have been employed for a minimum of two years.
Employees in the UK are protected in a number of ways from being treated unfairly, discriminated against or unlawfully dismissed.
The vast majority of employee rights in the UK come from the Employment Rights Act 1996 and the Equality Act 2010. A criminal record is not classed as a protected characteristic of the Equality Act and can’t therefore be relied upon if your claim is based on discrimination because of an unspent caution or conviction.
Many employment claims will require you to have been employed for at least two years (if you started work after 6 April 2012); 1 year if you started before this. However, there are some claims that can be made which don’t have a two-year service requirement. One of those is wrongful dismissal, which is the focus of this page.
When can you make a claim?
A claim for wrongful dismissal can arise when an employer breaches the terms of an employee’s contract; for example if an employer fails to honour a notice period or terminates a fixed term contract before the contractual end date.
An employer may be justified in terminating your contract without notice if it is found that you have committed gross misconduct. Determining whether misconduct was severe enough to warrant dismissal without notice can be quite case specific.
However, if for example your contract was terminated for failing to disclose a conviction which an employer was not entitled to know about (for example your employer found out about your spent conviction due to carrying out an ineligible criminal record check or reading information about you online), then you may have a case for wrongful dismissal.
If your contract is terminated as a result of your employer discovering details of an unspent conviction which you didn’t previously disclose, it’s likely they will rely on ‘gross misconduct’ as their reason for sacking you. However, this isn’t always the case and it may still be worth you seeking legal advice.
If you have a notice period of less than one month then wrongful dismissal is generally not worth pursuing.
What can I claim?
The downside of any claim for wrongful dismissal is that damages are limited to the length of your notice period. You wouldn’t be able to claim for loss of earnings beyond your notice period.
Claims can be pursued in either the Employment Tribunal or County Court.
Why should I make a claim?
Despite having a spent conviction which wouldn’t be disclosed on a basic criminal record check, employers may become aware of it in other ways. When this happens, they are often loath to disregard it and will terminate someone’s contract.
Although the amount of money you can claim for wrongful dismissal is limited, any amount is better than nothing and may help while you search for a new job. For many people, money isn’t as important as just having an employer accept that they’ve acted unlawfully.
Making a claim for wrongful dismissal can be quite complex. It can be done by an individual, but you may also want to seek advice from an employment law specialist.
Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of these organisations listed below can be found here
ACAS – An organisation specialising in preventing and resolving employment disputes
Citizens Advice Bureau – Provide practical up-to-date information on a wide range of topics including employment rights.
The Law Society – The Law Society have a section on their website covering ‘problems at work’ together with links to specialist employment solicitors.
The aim of this page is to give you an overview of how your criminal record can affect your employment, and what remedies are available should something go wrong.
The information contained here is intended to be very basic; if it doesn’t answer your questions, or you have any doubts about whether or not you should raise an issue with your employer or commence legal proceedings, we would recommend that you seek legal advice.
There are some instances where it may be appropriate (or necessary) for Unlock to take on your case and provide you with individual help and support.
Employers can be influenced by a great deal of prejudice when dealing with someone who has a criminal record.
Despite the fact that 1 in 3 of the adult male population has a criminal record, not all employers are entirely clued up on what their obligations are when dealing with those who have a criminal record.
If you have an unspent conviction, you have very little legal protection when applying for work.
However, it is unlawful for an employer to subject you to any ‘prejudice’ because of a conviction if it is now spent, for jobs where the Rehabilitation of Offenders Act (ROA) 1974 applies. In practice, this should not arise very often, as it would be difficult for an employer to discover a spent conviction without a standard or enhanced Disclosure and Barring Service check(which should only be done for roles exempt from the ROA), or through your own admission.
It is possible that an employer could learn of your conviction inadvertently (e.g. through others), so it’s important to know what legal rights you have.
Seeking employment with a spent conviction
The general rule
The Rehabilitation of Offenders Act 1974 (ROA) allows most convictions to be considered spent after a set period of time. Unless you receive a prison sentence of over 4 years or have any type of indefinite order, your conviction will become spent at some point.
Once your conviction is spent, this entitles you (for jobs where it applies to), in basic terms, to portray yourself as somebody who has never been convicted, i.e. it allows you ‘to legally lie’ (subject to the exceptions listed below).
Spent convictions should not be used as evidence in employment tribunals, without the consent of the person concerned and questions should not be asked that would elicit or hint at such information.
If your contract of employment asks you to disclose your convictions, you would not be required to disclose any that are spent (see section 4(3) of the ROA). As a general rule, you would not be breaching any employment contract if you failed to disclose a spent conviction and, if you were dismissed for failing to disclose a spent conviction, then you may have legitimate grounds to bring a case of unfair dismissal.
Certain jobs do require you to disclose spent convictions, as these jobs are exempt from the ROA.
However, you should only disclose when you are sure that you are applying for a position that requires you to do so. The vast majority of jobs and professions are not covered by these exemptions and a request to disclose spent convictions can be ignored unless the position is exempt.
Below is a brief list of the types of jobs that might require you to disclose spent convictions:
Doctors, dentists, midwives and nurses
School based jobs
Jobs with social services providers
Jobs that involve the supervision or training of people under the age of 18
If you have to undergo a standard or an enhanced criminal record check as part of any recruitment process, then this will result in an employer discovering your spent convictions and cautions unless they are eligible for filtering from these checks.
Applying for jobs covered by the ROA with a spent conviction
Making your application
If you’re asked about whether you have a criminal record, either on an application form or during a job interview, then legally you can answer ‘no’ if it is spent.
However, this does not prevent you from discussing or revealing your conviction if you chose to, although this is unnecessary and in most cases unlikely to be your best option. If you have any gaps in your employment record which you would find difficult to explain without disclosing your conviction or, you believe that an employer may find out in some other way, then you may decide to disclose. It’s important to remember that you are under no obligation to disclose and you should consider your position carefully before you do so, as although employers should not use a spent conviction to penalise you, in practice, it is difficult to stop them if they do.
Being refused a job
The ROA makes it unlawful for an individual to be excluded from any job (other than those not covered by the ROA) on the basis of them having a spent conviction. Therefore, if you’ve been denied a job purely because you have a spent conviction, then you may be able to bring litigation based on a ‘breach of statutory duty’.
To the best of our knowledge however, this has never been tried before, so we would recommend that you seek legal advice before you consider commencing proceedings. In addition, you would have to be able to prove that the decision not to offer you the position was based wholly or mainly on the existence of a spent conviction, which, without clear documentary evidence is likely to be very difficult to prove.
Treatment whilst in employment, including dismissal
If your employer/colleagues become aware of your conviction and you find yourself being bullied, harassed or otherwise mistreated because of it, then you should raise this informally with your line manager. If your manager is the cause of the bullying etc then you can either arrange to talk to them and try to rectify the issue or seek out their immediate superior. Hopefully you’ll be able to sort out the problem at this point.
If not, then you will need to consider whether to make a formal complaint, via your company’s grievance procedure. If your employer has an HR department, they should be able to provide you with a copy of this. Your trade union (if you are a member) will also usually be able to provide you with advice . You may also want to have a look at the ACAS guide to grievance procedures.
The most obvious and serious form of mistreatment resulting from a knowledge of your spent conviction is dismissal. Any dismissals which are based on a failure to disclose a spent conviction will be deemed unfair (and will guarantee a finding of unfair dismissal at an employment tribunal). If you are dismissed, then it is possible that your former employer will claim a different reason for their decision at a tribunal, so you should gather as much evidence as you can to support your claim that it was your conviction that was the main motivating factor behind the decision. This can include:
Communication between yourself and the employer
Information about other employees
Internal communications within the organisation
It should always be your aim when going through disciplinary proceedings to avoid dismissal. You could try to enlighten the company about it’s legal obligations, by pointing out to them that they cannot legally dismiss you solely because you have a spent conviction. You might want to refer them to the ROA and the case of Property Guards Ltd v Taylor and Kershaw  IRLR 175. This case contains an explicit reference to the relevant part of the ROA 1974 (S.4 (3)(b)) and clearly states that a decision to dismiss for not revealing a spent conviction is legally unfair. It may be that your employer is unaware of this and that this information leads them to change their position.
We would recommend that you seek legal advice as soon as you are notified of any disciplinary proceedings so that you are able to mount the best possible defence and have the greatest possible chance of avoiding dismissal.
Applying for jobs exempt from the ROA with a spent conviction
Making your application
If the job you are applying for is exempt from the ROA you will legally have to disclose all cautions and convictions unless they are eligible for filtering.
Being refused a job
The potential for legal action if you are refused employment because of a spent conviction is, as mentioned above, somewhat uncertain. However, if you are applying for a job which is exempt from the ROA, then the position is much clearer; there is very little that you can do.
If a job is exempt from ROA then generally, it is also exempt from the legislative protective elements as well.
Treatment whilst in employment, including dismissal
The initial position is the same as above. The exemption strips you of the ROA’s protection and you will not be able to use it to defend yourself in concealing a conviction.
However, this does not deny your right to file a grievance if you are unfairly treated or a claim with an employment tribunal if you are dismissed. Being dishonest about a spent conviction does not automatically entitle an employer to dismiss you or subject you to negative treatment, although it may make your actions seem more reasonable to a tribunal than might otherwise be the case.
Seeking employment with an unspent conviction
Applying for a job
If your conviction is unspent, then you do not have the legal protection of the ROA and cannot answer ‘no’ when asked if you have a criminal record.
This is a question that you will need to be prepared for, as most application forms will contain it in some form. The lack of ROA protection means that there is nothing to prevent a potential employer from asking you the details of these convictions if you admit to having a criminal record. Many companies have a ‘Recruitment of Offenders’ policy and you should check if your potential employer has one and what it says so that you know what to expect.
The ROA is not designed to enforce disclosure of unspent convictions; it is a protective law, not one aimed at making life difficult for those who do not benefit from it’s protection. This means that if information about your criminal record is not sought by an employer, then there is no legal need for you to disclose your unspent convictions and nor should you be penalised if these are later discovered.
If you are dismissed for such a reason, it may be worth considering an unfair dismissal claim and raising this point during any internal appeal. Whether or not the dismissal was lawful would depend on what you were asked and what factors you put forward in the interview as qualifying yourself for the job. For example, if you described yourself as trustworthy, but had dishonesty convictions, then this could count against you, even if you were not asked about such convictions.
In practice however, it is more than likely that the question will be asked. If it does not come up on the application form or the interview, then you should still be prepared for it to form part of your contract of employment that you disclose any convictions. This is a standard term in a lot of employment contracts and perhaps explains why it is important to ensure that you read and understand the terms of your contract before you accept a job offer.
If you disclose your conviction, it is important to be as honest as you can be. A failure to do so is likely to lead to dismissal in the event that any lie is discovered and could also, potentially, lead to civil litigation (for breach of contract) and even further criminal charges. Both of these would cause serious problems for a person seeking to turn their life around and could prove costly both financially and personally.
Being refused a job
Unfortunately, this is one of those situations where there is very little you can do.
Although the intention of the ROA was to attempt to make life easier for people with certain types of criminal record, it did not include any provisions regarding the appropriate treatment of all the others. In the intervening years, little or nothing has been done to alter this situation. There is no legal concept of ‘discrimination on the basis of having a criminal record’, as there is for discrimination on the grounds of age or disability.
Your treatment, therefore, will only create a legal claim if it would do so for someone without a criminal record. Where you are refused a job because of your race, sex, religion, nationality, age or some other characteristic protected by the Equality Act 2010, then you can bring an action at an employment tribunal.
Otherwise, the law as it stands, permits an employer to recruit whom he wants; it will not question his reasons or his motives. Refusing to employ someone for having a conviction cannot be the cause of a legal claim, in the same way that an employer cannot be sued for refusing to employ someone because they like watching Eastenders; there is no obligation to engage in reasonable or rational decision-making when choosing employees.
Treatment whilst in employment, including dismissal
The position here is essentially the same as in the sections above on treatment based on a spent conviction and recruitment. Having an unspent conviction is not a characteristic afforded legal protection; how to proceed will therefore depend on factors other than your conviction.
Dismissal for non-disclosure of an unspent conviction
If you fail to disclose an unspent conviction when you are asked, this could result in your being dismissed should the conviction be discovered later. An employer would usually be able to justify the dismissal on the basis that you breached your contract and that your dishonesty was a breach of the term of mutual trust and confidence implied in your employment contract. An employer should still take the time to investigate the reason for the non-disclosure fully and come to a reasonable conclusion – he can’t simply take the decision without consideration. It is usually difficult to convince an employment tribunal that dismissals of this kind are unfair.
Another issue is that you would almost certainly have a credibility problem as you’re starting out with an open admission that you acted dishonestly by lying about your criminal record in order to obtain employment. If you are merely questioning the legal fairness of the employer’s decision, this may not do you too much harm. However, if you are questioning the employer’s account of events (for example by claiming that he is using the lie as a pretext for an unlawful dismissal), then a lack of credibility could prove fatal to your case. You would need some very strong independent evidence or be a very convincing witness in order to win in such circumstances.
Don’t be discouraged from bringing a claim but think carefully about how you would address the obstacles highlighted above. If your conviction were for a minor offence or had no relevance to your suitability for the job then it might be possible to argue that the decision to dismiss you was unreasonable, notwithstanding the deception.
Dismissal for a known conviction
It is possible that even when you are honest about your conviction, your employer could later decide to dismiss you because of its existence. If this happens, then any employment tribunal case would proceed in the same way as any other unfair dismissal case. Your employer will need to demonstrate that the decision they made was fair.
If you received the conviction prior to being recruited and the employer was aware of it at the time they hired you then, it is likely that a dismissal made purely on the basis that you had such a conviction would be unfair.
This does not mean that all cases where you are dismissed for openly known about convictions will result in findings of unfairness. It may be, for example, that the nature of your employment has changed to such an extent that your conviction now relates more directly in your day-to-day work or your suitability for the role. Examples of such situations would be where:
You have a dishonesty conviction and your job changed to put you in greater unsupervised contact with money or valuable property.
You have a conviction related to children and your role now brings you into closer or more contact with them.
Your conviction is related to driving and your role is being changed to include driving duties.
However, none of these examples alone would necessarily make your dismissal fair. The circumstances that led to the dismissal and the exact relationship between your conviction and the change in duties would often still be open to argument and an employer would, at the very least be required to consider (but not necessarily provide) alternative employment within the company.
It is also possible that a conviction could lead to it being more likely that a tribunal would find it reasonable for an employer to draw conclusions in misconduct cases; for example, where you are accused of violence, dishonesty or drug use and have a conviction that proves past incidents that are of a similar nature. This does not mean however, that a conviction will automatically induce an employer to find you guilty in such circumstances and a tribunal would expect a proper investigation of the allegations.
Dismissal in cases of resignation
If your conviction leads to your being mistreated by your manager/colleagues then you may decide that you have no other option but to resign. Before things get to this stage, try to raise it through the company’s grievance procedure. This can often nip the situation in the bud. If you do make the decision to resign however, you may be able to claim unfair dismissal, referred to in cases such as this, as constructive dismissal.
A constructive dismissal case is one in which the dismissal is a result of your resignation, rather than the employer’s decision to dismiss you. If you are seeking to claim that such a dismissal is unfair, then you will likely be relying on the fact that the employer, through his actions, breached the term of ‘mutual trust and confidence’ that is implied into all employment contracts. Technically, you may be relying on the employer’s breach of any employment term, but the term of ‘mutual trust and confidence’ is the most commonly used in such circumstances. Proving this has been breached is no easy task and will require significant negative action from the employer or his staff. Simply hurting your feelings is unlikely to justify a claim that there has been such a breach.
In cases of a single action or comment, the humiliation or upset that it causes would have to be severe, and your response to it would have to be reasonable. Resigning because someone made a single joke about your conviction would be unlikely to meet this standard, but a single unjustified and baseless accusation of misconduct or criminal actions could, in certain circumstances, be serious enough to justify resignation.
The other scenario is where a string of incidents lead to a ‘final straw’ event that means that you feel you have no choice but to leave your employment. An example of this could be where constant negative references or ‘jokes’ are made about your conviction, to the extent that you are constantly being humiliated. Another example could be where you are consistently blocked from opportunities for advancement, training or other benefits open to your colleagues. In the ‘final straw’ scenario, the bar for the significant trigger incident is set lower, provided you can set out that it was the last in a string of incidents that would, taken as a whole, justify a loss of trust and confidence in your employer. Going through the grievance procedure is helpful, but where this is ineffective, it is important to highlight to the tribunal why this was the case.
What comes after your resignation? Well you have to convince the tribunal that you were unfairly dismissed. There are three basic components to this:
That your employer committed a serious breach of the contract (as described above)
That you resigned because of the breach. It must be the main reason for your dismissal, rather than merely a minor motivating factor. For example, if you have had another job offer and had already decided to leave then the breach would likely not have caused your resignation. Similarly, if you had decided you wanted to stop working in retail and move into sales, the breach is also unlikely to have caused your resignation.
That you did not ‘waive’ the breach, by unduly delaying your resignation. In constructive dismissal cases, there should not be a long break in time between the actions you claim caused the breach and your decision to resign.
It is important to know that constructive dismissal is by no means easy to prove. Resignation should always be the last resort; it can rarely be undone and should never be taken lightly. As we’ve said above, a grievance procedure can often remedy ill treatment and you should never be afraid to go to your HR department informally and make enquiries about how that procedure works in your company. However, if a grievance procedure is ineffective or inappropriate, and you are treated in such a manner that you genuinely feel that you cannot continue to work for your employer, then a resignation should be followed by you seeking immediate legal advice.
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.
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.
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:
If you are given the opportunity, you will need to explain the circumstances to your employer. You should outline your value to the company, your good service (if you have it) and address any specific concerns they may have as best you can.
If convicted of a driving offence whilst employed as a driver, for example, this would be difficult, but you could at least put the thought in their minds that you could be transferred to another role. Similarly, if convicted of a dishonesty offence, you could propose that you be moved away from a cash-handling role. Such arguments carry little weight with some employers, but with others, they could prove effective, especially where you have a record of good service and the conviction was totally divorced from your employment. The important thing to remember is not to give in, but to defend yourself. Even if it seems hopeless, you may end up convincing your employer not to dismiss you.
Firstly, a refusal to co-operate will not help you as far as the internal disciplinary process goes, as there will be nobody to put your case to the employer and no opportunity for you to question the position that they take. In addition, an Employment Tribunal is unlikely to be impressed with your refusal, which would make it difficult for a reasonable employer to involve you in the proceedings and comply with the need to give you the opportunity to explain what has happened. Remember, most employers do not instigate disciplinary proceedings lightly and the best way to combat any assumption or evidence that they have (and to discover what it is) is to participate in the disciplinary process.
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.
Our helpline was contacted by someone who had been suspended by his employer when they became aware of his conviction for harassment through reports in his local newspaper.
The offence didn’t take place within the work place, was not relevant to his job and had occurred during a period of mental illness which his employers were well aware of. His contract of employment did not make it clear whether there was any obligation on him to disclose his new conviction.
The reasons given by his employer for taking disciplinary action were that:-
He failed to disclose being charged with a criminal offence
The offence impacted upon his credibility to discharge the duties of his role
There was a loss of trust and confidence in the employment relationship due to the failure
This case demonstrates how despite there being no legal obligation to disclose, the fact that this gentleman’s conviction received some media interest means that this was possibly something he should have taken into account when deciding whether or not to disclose.
Did you get a conviction and keep your job? If so, let us know.
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.
This if for information only. We are unable to provide advice on this. For reasons why, click here.
Many people that we help make use of the information and advice that we’ve provided, and go on to find legal advice to help them with a problem that needs legal expertise. As a result, this section is designed to help you find appropriate legal advice.
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The Legal Ombudsman handles complaints about solicitors. You must make a formal complaint to your lawyer or law firm before you can take it to the Legal Ombudsman. Firstly, put your complaint in writing to the lawyer or law firm concerned. Clearly write ‘Formal complaint’ at the top of your letter and keep a copy (download “Putting your complaint in writing” for more information). Keep copies of everything, including any replies you get. If you are not satsified with the outcome, you can then complain to the Legal Ombudsman.
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For civil cases, you may be able to obtain public funding (legal aid) to help with legal costs, but this depends on many things, including your finances (how much you earn, what savings you might have etc) and what sort of legal help you are looking for. You can check if you can get legal aidhere.
Pro bono is not a substitute for legal aid, it is an addition to it. It can provide legal help to those who cannot get public funding but cannot afford to pay their legal costs. It means that the lawyers will not charge for any time they spend on a case.
Legal remedies for employment disputes
This page is for information only. We are unable to provide advice on this. For reasons why, click here.
The aim of this page is to give you an overview of the legal remedies which may be available to you should you be dismissed by your employer.
The information contained is basic; if it doesn’t answer your questions, or you have any doubts about whether or not you should commence legal proceedings, we would recommend that you seek legal advice.
The costs of taking your employer to an employment tribunal can be expensive and your likely level of winnings will usually only cover what you have lost. Therefore, it’s important that you think carefully about taking any form of legal action and seek proper legal advice.
Length of service and other requirements
The law requires that an employee work for an employer for a minimum period before they can claim unfair dismissal. If your employment started before 6 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 made a claim.
If you do not meet the length of service requirement, then unless your situation comes within a statutory exception (for example, the right to maternity pay, or where you are a whistle blower), then you will have no right to claim unfair dismissal and should you do so, your employer will simply apply to have your case struck out. This does not necessarily mean that you should not seek legal advice, especially if you decide to appeal your dismissal using your employer’s internal procedures but, always make it clear to the adviser that you believe you may not meet the service requirement as this will significantly affect the advice you are given.
Unfair dismissal laws are only applicable to people working under a contract of employment, as opposed to a contract for services. As a rule, you will generally be an employee if:
you are obliged to perform the work personally (you cannot send a substitute)
if your employer is required to provide work (and pay you for it); and
you are under the control of your employer (for example, you can’t turn up for work whenever you like and must do the work asked of you).
If you have any doubt about your employment status, then seek legal advice.
Importantly (and this may sound obvious), there must have been a dismissal. Generally, whether or not there has been a dismissal will be obvious. It is important that you know however, that a resignation can count as a dismissal. This is covered in more detail below.
Finally, different claims have different time periods within which you have to file a claim for it to be considered valid. The unfair dismissal time limit is three months from the date of dismissal and the same time frame applies to unpaid wage and discrimination cases. These are hard time limits and cases submitted late will only be accepted in exceptional circumstances (such as serious illness), so it is important to abide by the rules and get your claim in on time. This is one of the reasons why seeking legal advice at the first opportunity is so important; it can ensure a claim is brought properly. You may still be able to proceed in the County Court, but this brings a much greater risk of costs and is generally a more lengthy process, so it is far from an ideal option.
Was the dismissal fair?
The reason for dismissal is crucial in any unfair dismissal case and something that the tribunal will have to consider when deciding the issue of unfairness. The reason must be one that is fair. There are five ‘potentially fair’ reasons for dismissal:
That continuing the person’s employment would have led to the contravention of a statute
Some other substantial reason (SOSR)
The first four are clear in meaning. The fifth one, SOSR, may seem vague; this is because it is a catchall provision that entitles the employment tribunal to consider the reason for dismissal and decide for itself whether that reason is capable of being lawful. Examples of reasons accepted under this heading include:
The imposition of a prison sentence
Necessary re-organisation of a business
That the person was employed as maternity/sickness cover
A breakdown in the employment relationship
The list of reasons that have so far been considered as SOSR by tribunals is not exhaustive – an employer may come up with one that has never been used before.
It is open to a claimant to put forward an alternative reason for dismissal if he believes that the employer is being less than honest about his motivation. For example, if you believe that an employer is taking advantage of an incident of misconduct to justify a dismissal that is really based on an unlawful reason, or dismissing you because of your conviction but claiming officially that you are not up to the job. If you believe this is the case, then you should put it to the tribunal, but evidence will be required in order to convince them, so go prepared. It is worth noting for these purposes that your employer bears the burden of proving that the reason given was the true motivation for the dismissal.
Did the employer act reasonably?
Even if the reason is capable of being fair, this does not automatically make it so. The tribunal must also consider whether an employer has acted fairly in dismissing for that reason. The tribunal will consider whether an employer has acted reasonably in all the circumstances of the case. For example, the size of an employer is relevant to how practical alternatives to dismissal would have been and the nature of the work done may make certain acts of misconduct worse in context than when viewed in isolation.
It is important to realise that ‘unfair’ does not carry its normal, everyday meaning in this context. It has a specific legal meaning and you should bear this in mind when considering whether to make a complaint to the employment tribunal.
Indicators that a decision was unfair include:
Failing to give an employee the chance to explain alleged misconduct
Failing to provide adequate notice of a disciplinary hearing
Failure to inform that a disciplinary process could result in dismissal
Failure to permit an employee to be accompanied to a disciplinary by a fellow staff member or union representative, or to inform him of the right to do so
Failing to give an employee the opportunity to improve his performance (in capacity cases)
The decision being based on an unreasonable misapprehension of the facts
Unreasonable delay in taking a decision or instigating disciplinary proceedings
An over-reliance on irrelevant or improper factors
A failure to follow basic procedures in coming to the decision, including a refusal to permit an internal appeal or properly investigate the situation that led to the dismissal
A lack of an internal appeal process to a more senior manager
An appeal being determined by someone with prior involvement in the matter
This is not an exhaustive list and the presence of one of these factors does not automatically generate a finding of unfair dismissal. Decisions in such cases usually turn on the facts peculiar to the individual case, and it is often difficult to know which way a tribunal will go until the evidence is placed before them. Because the specific factual evidence can be so influential, the importance of witness performance cannot be understated. If you do not make a convincing witness, or cannot sufficiently undermine the evidence given by your opponents, then you are going to struggle. Paper evidence is also important, so gather it as early as you can; at the tribunal you should endeavour to have an explanation for every piece of evidence the other side have that may appear unfavourable to you.
At the employment tribunal
Bringing a claim
If you are confident that you have a worthy claim and have sought legal advice confirming this, then the first thing you need to do is fill in a claim form. Unlike most court forms, this claim form can be completed online. You won’t be able to submit the form if you have missed out any mandatory sections; this is a particular advantage as an incomplete form will be rejected and the clock counting down to bar your claim will not stop running until a form is correctly submitted.
Once you’ve submitted your claim the other side will have 28 days to respond to your claim. In the unlikely event that they fail to do so within the 28 day period, then you win automatically and can obtain what is referred to as a ‘default judgement’. Don’t expect this to happen; you need to keep preparing your case as best you can.
Employment tribunals are supposed to be cheaper, faster and easier to understand than a normal court. They have been set up with the unrepresented claimant in mind; you do not need a lawyer to bring a claim and you can examine witnesses and make arguments in the employment tribunal yourself.
Use of convictions in evidence
The main way in which you will give evidence is on paper, via a witness statement that you will have prepared in advance. The tribunal panel will have read this before the hearing and you will not need to read it out or be asked questions about it by your representative.
However, you will have to be cross-examined, which means answering questions from the other side about your witness statement. Similarly, you will have the chance to question your employers’ witnesses, so that you can highlight any inconsistencies or errors in their statement.
There are some specific problems which could arise in the case of someone with a criminal record. Section 4 (1) of the Rehabilitation of Offenders Act provides that spent convictions should never be used as evidence in judicial proceedings and questions should not be asked that would elicit such information. This rule applies equally to employment tribunals. Therefore, in general terms, it would be wrong for questions to be asked or evidence given about a spent conviction. This can of course, cause problems for someone with a conviction bringing legal proceedings. There are two circumstances where this is likely to come up:
Where the claim is based on the employee’s spent conviction (such as a dismissal following its being discovered)
Where a witness on either side has a spent conviction.
In the first case, the employee can waive his right to conceal his conviction. Indeed, he would have little choice but to do so if he wanted to bring a case. It would be impossible to prove unfair dismissal in a case based on a spent conviction if the employment tribunal could not hear evidence that the conviction existed. The narrative of the case would not make sense and it would be almost impossible for the employment tribunal to come to a decision in the claimants favour. So, disclosure of the spent conviction could not, realistically, be avoided in such circumstances. This means that the potential claimant must make a decision; are they more interested in keeping their conviction out of the public domain, or in bringing a claim? It is unlikely you will be able to do both. Employers will know this, so settling a claim out of court could also be more difficult to accomplish as a result.
As for the second scenario, this is a difficult issue. From a claimants point of view, a witness’ convictions would not necessarily be relevant, even if the claimant knew about them. It is possible that in a dismissal claim, where another person with a similar spent conviction was uncovered and no disciplinary action was taken, then the contrasting treatment would be relevant. Although such evidence could prove crucial in proving your case, you are as bound by the bar on discussing the conviction as the other side and should not ask questions about it of any witness who is protected by the ROA. To compensate, you could ask questions of your employer of a more general nature, without naming anyone. Similarly, if you call a witness with a spent conviction, the other side should not ask questions about it, even if it seems relevant. Of course, when questioning someone with a spent conviction, it is unlikely you will be aware of his/her status in the first place, but these points are worth bearing in mind should the issue arise.
With regard to unspent convictions, there is nothing to stop either side referring to a person’s unspent convictions, if they meet the general requirements applied to all evidence, which is relevant to a particular issue in the case. It would be inappropriate for either side to raise the issue of a conviction unless it has a direct bearing on one of the issues in dispute; employers should not raise a conviction where it is irrelevant. For example, if you are bringing a claim for unpaid wages, your conviction would likely have nothing to do with your claim and an employer should not raise it in an attempt to smear you in front of the employment tribunal. Even if they did so, it is unlikely that the tribunal members would fall for such a tactic.
The rules on compensation are complex however generally, you will only be paid what you have lost, because of the decision that has been declared unlawful. In an unfair dismissal case, this is likely to include:
The wages that you should have earned from the date of dismissal up until the hearing date (less any wages earned in new employment)
A certain amount of lost wages for a period of time after the hearing date
The cost of looking for new employment
Even if you are entitled to the above losses, how much of this you get depends on two key factors: how much of your dismissal was your fault and what you’ve done to make sure your losses are as small as possible.
The cost of bringing a claim
You may have to pay a fee to make a claim. The amount depends on the type of case and your personal circumstances. In almost all cases, each side is responsible for paying their own costs and not responsible for those of their opponents, even if they lose. Given that it is difficult to get the other side to fund your legal team should you win, you may want to think twice about hiring a legal representative. Some will offer an initial free consultation with no obligation and some will offer a no win no fee arrangement. However, employment litigants are not eligible for legal aid, regardless of their income, it is not an area of law that is deemed worthy of funding.
For this reason you would need to pay for a lawyer. They don’t come cheap and the odd news report of someone suing their employer for huge sums of money is misleading, these are the exception, not the norm. The money for your lawyer will have to come out of your winnings, which may make the whole process hardly worth the effort, given that the average award for unfair dismissal is less than £5,000. That’s not to say that a lawyer should be avoided, it is merely a warning that you should think hard about the costs of their assistance, especially where your case turns on a simple set of facts.
There are organisations such as the Free Representation Unit and certain law centres that provide free legal assistance, but you can’t access FRU directly; a CAB or law centre must refer you.
Trade Unions, if you belong to one, can be a useful resource in such circumstances. However, membership is not a guarantee of them sending a representative to court with you. The best option is to get your union representative involved as early as possible.
Finally, if you have some, it might be worth consulting your home insurance documents. Some home insurance plans cover legal advice and this does not necessarily need to relate to matters involving your home.
Litigants in person regularly win cases against their employers; you are not going to lose just because you are lacking a lawyer, even if the other side has one. Just go prepared, be calm and take your time.
Below you will find links to useful websites relating to this page. More specific details including addresses and telephone numbers of some of the organisations listed below can be found here.