What to do if an employee has a criminal past

If it comes to light that your employee has a criminal conviction don’t make rash decisions. Get expert advice and learn the legal dos and don’ts of employing people with a criminal record.

Friday, Feb 16, 2024
3 min read

When hiring, looking for specific skills plays a huge part in the decision-making process. Whether you’re on the lookout for a Data Engineer with data analysis skills, or perhaps a Site Manager with project management skills—it’s likely you’ll already have the perfect CV in mind.

You might also have a list of attributes you want, like being a team player, or specific qualification requirements. What’s potentially unlikely to be at the top of your checklist is a candidate with a previous criminal conviction…

But before you rule anyone out of the process for good, read our handy advice on how hiring employees with a criminal past can benefit your business and find out the employment laws you should follow if you do…

Don’t judge a book by its cover, (or in this case an employee by past mistakes)

One in three employers in the UK would reject a candidate with a criminal record. Meaning a third of UK businesses could be missing out on a huge pool of qualified candidates.

In support of this, Alan Price, CEO of BrightHR says: “Employers could be missing out on valuable employees by automatically discarding applications from candidates with convictions.”

“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.”

Changing negative perceptions about hiring employees with a criminal past could be the first step to fixing labour shortages in the UK as two-thirds (66%) of large businesses said they struggle to recruit employees with the skills they need.

Giving people a second chance could help you widen your talent scope and start bridging the skills gap. Not to mention introducing more diverse abilities to your workplace.

A great success story is Timpson which is the UK’s largest employer 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’ success and positive reputation.

First-things-first, understanding how different convictions affect different jobs, roles, and industries can help you assess if hiring ex-offenders is feasible in your line of work. It can also help you to make sure your hiring process is fair and lawful.

Usually, spent convictions—where a certain amount of time (the rehabilitation period) has passed since the conviction — don’t need to be disclosed to employers during the hiring stage.

But there are certain roles, for example solicitors, accountants, and teachers, where it’s a requirement that all spent convictions be disclosed during the application process and candidates may be subject to a criminal record check, like a DBS check.

Remember, it’s unlawful for employers to refuse to hire someone because of a spent conviction. Job seekers don't have to tell you about any unspent convictions unless you ask. That’s why it’s sometimes best to err on the side of caution and avoid asking when hiring.

What should you do if one of your current employees has a criminal past?

If someone’s already employed when you find out they’ve had a conviction that’s considered spent in the eyes of the law, it might make you rethink their position in your company.

But remember, it’s automatically unfair to dismiss someone because they have a spent conviction–but this protection only applies once the employee has been with you for at least 2 years.

So, to recap:

  • It’s unlawful for employers to refuse to hire someone based on a spent conviction.
  • It’s automatically unfair to dismiss someone because of a spent conviction if they have been employed for more than two years.

Discounting employees with a criminal past could:

  • Put your company at a talent disadvantage.
  • Leave you open to legal claims if you refuse to hire someone based on spent convictions.
  • Hurt your reputation as a fair and equal employer.

Looking for more in-depth employment advice? Talk to our experts.

Our expert employment law specialists are available 24 hours a day, 7 days a week to answer your questions—even the complex ones! Plus, as BrightAdvice is unlimited, you can call as many times as you like.

Speak to your BrightAdvice team today on 0844 728 0180.

Not a BrightAdvice customer? Discover more about our expert advice line.

1) Almost half of firms would hire someone with convictions but bias remains, report finds (peoplemanagement.co.uk)

2) Skills Gap Statistics UK 2023 | Oxford Learning College (oxfordcollege.ac)

3) The Timpson Foundation - Timpson Group (timpson-group.co.uk)


Share this article