What Are Your Employment Rights After Obtaining a Criminal Record?

There are loads of resources out there for people with criminal records who are applying for jobs, but there aren’t nearly enough for those who are already working.

In this case, employees who obtain a criminal conviction need to know what their rights are and if they should disclose it to their employer. For example, if you tell your employer and they use this fact to treat you unfairly or fire you, you need to know whether you should consider making an employment tribunal claim against them or not.

We’re going to help you answer that query and more by telling you everything you need to know about your employment rights when you obtain a criminal record. Don’t go anywhere…

Do you need to disclose your criminal record or conviction to your employer?

Annoyingly, there’s no clear answer to this. Whether you have to tell your employer about your conviction will mostly depend on what your employment contract says:

1. The contract clearly states you have to disclose the information

This is the most cut and dry way to know if you have to disclose your convictions to your employer.

If your contract states that you have to disclose any criminal convictions you receive whilst working for the company, then not disclosing them would be a clear breach of contract. In this case, your employer would be within their legal rights to dismiss you for it.

2. The contract doesn’t state that you have to disclose it

In the event that your contract says nothing about disclosing your criminal convictions to your employer, the choice is pretty much down to you.

If out of self-preservation, you choose not to disclose your convictions, and your employer finds out further down the line, they have no legal recourse to fire you for that fact alone. However, some employers might choose not to trust you and that can cause its own issues.

Obviously, if you’re sentenced to a prison term, your employer doesn’t have any obligation to employ you and is legally within their right to replace you.

On the opposite end of the spectrum, if you have a conviction that becomes spent immediately, the Rehabilitation of Offenders Act should protect you from having to disclose the conviction at all, unless you work in a job that is ROA exempt.

What can your employer do once they find out?

Now you have an idea as to whether you need to disclose your criminal record to your employer, it’s time to look at what they can actually do if and when they find out.

When it comes to your employment rights, your employer has many ways they can dismiss you for having a criminal record that you need to be aware of.

1. Committed the crime on the job

This scenario is pretty cut and dry. You committed a crime at work or during the course of your employment, your employer can treat it as a disciplinary matter, and they then have to follow their own disciplinary procedure.

They can choose not to discipline you at all, but it would have to be a very minor crime for them not to do so.

2. Committed the crime off the job

If the crime is committed off the job, the process becomes much more complicated, and the employer has to come up with other reasons to discipline or dismiss you.

This is where choosing to disclose your convictions could be in your best interests because an employer could go down the disciplinary route and fire you based solely on the fact that they don’t trust you.

The main factors an employer will take into account when looking at your conviction are:

• Does the crime impact the image of the company? In this case, the amount of press coverage and the seriousness of the crime will be the main factors that determine your fate.

• Does the crime suggest you might be a threat to fellow employees or customers? If the crime was violent or sexual in nature, there’s a high likelihood your employer will deem this reason enough to dismiss you.

• Are you likely to commit a similar offence in future? Your employer will consider whether you might commit the crime again, especially whether it will happen at work or not. If you kept this conviction a secret, chances are they won’t trust you not to do it again in future.

• Will the conviction impede your ability to perform your job? Examples of this would be losing your driving licence if your job relies on you doing a lot of driving, or you were convicted of theft and you work at a supermarket checkout, etc.

Basically, if your crime clashes with your job in any way, your employer has the right to take you down the disciplinary route and you could potentially lose your job.

What happens next?

In this post, we’ve managed to cover whether you need to disclose your criminal record to your employer and what you can do if they find out.

It might seem like the employer has the upper hand and can use the fact that you have a conviction to justify your dismissal. However, all employers have a legal duty to act responsibly and follow their own procedures instead of immediately dismissing you.

This means you will have the option to explain yourself, discuss the issue with your employer, and try to straighten it out. If they dismiss you anyway, and you see it as unfair treatment, you can take your case to an employment tribunal and let the courts decide.

Either way, just because you’re going down the disciplinary route doesn’t mean the fight is over. You still have a chance to prove you’re more than the crime you committed and be treated fairly in the eyes of the law.

For more information about how Personnel Checks’ DBS Check and background screening solutions can aid your organisation, get in touch! You can give us a call on 01254 355688 or drop us an email at letstalk@personnelchecks.co.uk