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. An individual with experience, qualifications, or someone with a willingness to learn.

But what about someone with a criminal conviction?

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 are one of the UK’s largest employers of ex-offenders, 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?

Alan Price, CEO of BrightHR says, “Firstly, it’s necessary to understand how different types of convictions can impact on various jobs.

“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.

“Four in five businesses say they have problems recruiting workers in recent months. But the government is looking for ways to reduce these difficulties and has launched a new apprenticeship scheme for prisoners to help open up the labour market for employers whilst reducing the likelihood of people reoffending.

“Employers should recognise the success of the ex-offenders recruitment programme and take advantage of the support and resources available to them through it. Initiatives such as this can ease the pressure on organisations whilst also contributing positively to society, a win-win solution.

“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.

“After all, evidence shows that more than 80% of employers of ex-offenders have positively rated their reliability, motivation, attendance, and performance, and over nine in ten employers (92%) say diverse recruitment has enhanced their reputation, helping them win new contracts.

“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.”

A leading authority on employment law and HR, Alan is a Chartered Fellow of the CIPD with 18 years’ experience in employee relations, a Chartered Manager and Fellow of the CMI, a certified practitioner and Fellow of the Australian Human Resources Institute, and a member of the Canadian Human Resource Professional Association.

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