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.

First published on Friday, Jul 07, 2023

Last updated on Thursday, Jul 06, 2023

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)

Many employers would reject a candidate with a criminal record. On one side of the argument, you need to employ trustworthy staff but you could also be missing out on a huge pool of qualified candidates by excluding jobseekers with spent convictions.

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 spent 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 Ireland as employers in certain sectors continue to struggle to recruit enough 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 across the Irish sea 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.

What is a spent conviction?

To comply with the law on spent convictions, you need to ensure that any requirement to disclose criminal convictions as part of your recruitment process does not consider spent convictions.

Job candidates effectively have a right to lie if their prior conviction is spent so you should always clarify that candidates have no obligation to disclose spent convictions.

But what are spent convictions?

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. Only specific minor convictions that are more than 7 years old will be spent:

  • Convictions for certain motoring and public order offences received in the District Court, that attract less than a 12-month custodial sentence or 24 months suspended sentence not subsequently revoked.
  • One other conviction received in the District or Circuit Court, for which the sanction received was less than a 12-month custodial or 24-month suspended sentence not subsequently revoked.

While it’s clear what convictions will become spent, there are exceptions. The spent conviction legislation does not apply to any conviction for a sexual offence or an offence tried in the Central Criminal Court both of which can never be spent.

The legislation also doesn’t apply to certain organisations involved in the security of the State like an Garda Síochána or to employees or job applicants working with children or vulnerable adults.

It’s estimated that about 85% of convictions will become spent after 7 years of being handed down so there are likely to be lots of jobseekers who are entitled to deny having a conviction if it satisfies the relevant criteria.

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, if they have twelve months’ continuous service with your business, you would need to consider the unfair dismissal legislation if you intend to terminate their position.

So, to recap:

  • A job candidate is entitled to deny having a conviction if it is spent as defined under the legislation.

Discounting employees with a criminal past could:

  • Limit your talent pool when trying to fill vacancies.
  • Lead to unfair dismissal claims if you try to dismiss an existing employee with more than 12 months’ service.
  • 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 1800 279 841.

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