Recruitment and unspent convictions

You discover that an employee has a criminal record. Can you dismiss them?

Job applicants must declare ‘unspent’ criminal convictions on request, but they don’t have to volunteer this information if you don’t ask for it. You should only be asking for criminal record information during the recruitment process where it has a direct bearing on suitability for the particular role.

If you subsequently discover that an employee lied about an unspent conviction when asked during the recruitment process, that may be grounds for dismissal for breach of trust and confidence, but your case is weakened if the employee has otherwise been trustworthy and competent in the role, particularly over a long period.

If you didn’t ask about unspent convictions but they later come to light, whether a dismissal is fair will depend on several factors, including the nature, circumstances and seriousness of the offence(s) and the nature of the employee’s role. Consider what effect the conviction has on the employee’s suitability for the role and their relationship with work colleagues and clients. Also, explore why the employee wasn’t asked about their criminal record on recruitment if it was so relevant to their suitability for the role. You must follow a fair procedure before dismissing.

The employee can only claim unfair dismissal if you’ve employed them for two years or more.