An employee has committed a criminal offence

Steps to follow

• Do you genuinely believe on reasonable grounds that the employee committed the offence? This is the test that a tribunal will apply if you dismiss the employee and the employee later brings a claim for unfair dismissal against you. You do not have to establish guilt to the standard of proof that a criminal court will require to convict (beyond reasonable doubt). A genuine and reasonably held belief is enough.
• In order to establish this, you will need to make proper enquiries into the matter. You will need to give the employee an opportunity to explain what has happened.
• Try not to jump to conclusions. There may be an innocent explanation for seemingly suspicious behaviour, such as sudden wealth, suppliers who insist on dealing only with one member of staff, missing invoices, rising costs or employees who insist on working late.
• Whether the dismissal is justifiable depends on the nature of the offence and the type of work for which he or she is employed. Whether the offence was committed at work or out of hours may be relevant in assessing whether the dismissal is justified. Stealing from work will usually justify dismissal for gross misconduct.
• Review your security measures, including IT security. Do you need to offer more training?
• Was the offence committed a while ago? The fact an employee or candidate has a criminal record may not necessarily make them a bad employee. It has been estimated that one-fifth of the UK population has a criminal record.
• A conviction is usually ‘spent’ if it did not carry a custodial sentence of more than two and a half years, and no further convictions occurred during the rehabilitation period.
• If a conviction is ‘spent’, the employee does not need to answer ‘no’ to the question, ‘do you have a criminal record?’ However, some occupations require candidates for jobs to reveal spent convictions.
• It is an offence under the Rehabilitation of offenders Act 1974 for anyone with access to criminal records to disclose information about spent convictions without official authorisation to do so. Do not try to obtain information about spent convictions through fraud, dishonesty or bribery—this is a serious criminal offence.
• It is illegal to employ ex-offenders in some occupations, for example, restrictions apply where the job involves working with children and vulnerable young adults. These types of jobs are exempted from legislation regarding spent convictions. The employer will state clearly on any job ad that the post is exempted from the rehabilitation of Offenders Act 1974, and candidates must disclose spent and unspent convictions. Candidates will usually have to be CRB-checked.
• When making a decision, take into account the level of supervision, training and other safeguards that may be available.
• Motoring convictions may exclude candidates from jobs as drivers. You may also consider dishonesty offences a risk where the job involves direct responsibility for finance or goods of value, or where the offence would create an unacceptable risk for other employees.
• As the legal position differs depending on the job, you may want to seek independent legal help when making certain recruitment decisions.

What to watch out for

Some insurance policies prevent employers from hiring ex-offenders for certain positions. Check your policy to find out your position.

Solicitor’s top tip

Always keep information regarding convictions, spent or otherwise, confidential. Keep the information securely locked away. You should inform the employee about who in your organisation knows about their conviction.

Useful links

Free advice

www.businesslink.gov.uk
www.sbcc.org.uk
businesscrimecentre.co.uk
www.cipd.co.uk
www.cipd.co.uk
www.cifas.org.uk
www.fsb.org.uk

Online services

www.crb.homeoffice.gov.uk
www.disclosures.co.uk
www.ipo.gov.uk
www.crimereduction.homeoffice.gov.uk
www.businesscrime.org.uk

Useful article

Overview of fraud in businesses