Setting the record straight – asking applicants about their criminal record

Some of you may have seen the statistics recently which claimed that “1 in 5 employers break the law in asking candidates about their criminal record.” In my view that was potentially misleading, and I thought it would be helpful for me to explain the position further.

For most jobs, the disclosure of criminal records is covered by the Rehabilitation of Offenders Act 1974. This only requires unspent convictions to be disclosed if a candidate is asked about their criminal record. Those who have been convicted of a criminal offence but who have not re-offended during a specified period from the date of conviction are considered to be rehabilitated and their convictions become “spent”. Unless one of the exceptions applies (such as the crime being of such a serious nature that it is never “spent”), a person with a spent conviction is allowed to hold themselves out as having a clean record. Until that time, the conviction should be disclosed in response to a question asking for details of a criminal record.

The way the Rehabilitation of Offenders Act works in practice is that there is nothing to stop an employer asking applicants about their criminal convictions, but if that person has spent convictions then they would not need to disclose them (except if they are applying for a role where an exception applies, about which more below).

Therefore the suggestion that it is unlawful for employers to ask about previous convictions is clearly not correct. If someone discloses a spent conviction because they didn’t realise how the system works, then that is not the employer’s fault. It is fair to say that some people feel that more should be done to make it clear to offenders when exactly their convictions will become spent and what that means. It is also arguable that some employers could make their questions clearer to ensure they specifically exclude spent convictions. However, neither of these is the same thing as it being unlawful for employers to ask a candidate about any convictions.

As you would expect, there are some particular types of jobs that require applicants to be subject to certain checks, which involve the disclosure of all previous criminal convictions. An individual must disclose convictions that they are otherwise entitled to treat as being spent where an individual is applying for an excepted occupation, office or profession. The excepted occupations, offices and professions are defined in the legislation and fall into five broad groups:

  • Professions (such as doctors, lawyers, accountants, vets, chemists and opticians).
  • Those employed to uphold the law (such as judges and officers of the court, the police, prison officers and traffic wardens).
  • Certain regulated occupations (such as, financial services, those in charge of certain types of nursing homes, taxi drivers and firearms dealers).
  • Those who work with children, provide care services to vulnerable adults or who provide health services.
  • Those whose work means they could pose a risk to national security (such as air traffic controllers and certain Crown employees).

Employers with staff who perform these types of roles will of course be familiar with the process of applying for DBS checks, which check criminal records of individuals in the excepted occupations, offices and professions.

Any information obtained about previous convictions (whether spent or otherwise) is of course highly sensitive, and employers will need to ensure they comply with their data protection obligations in terms of how they store and process that data.

If you currently include a question about previous convictions in your recruitment process, and you would like advice about the best approach to take, do get in touch with our team who will be happy to help. 

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Is it always reasonable to dismiss an employee for failing a drugs test?

As employers, you have a legal duty to take reasonable care of the health, safety and welfare of your employees. If an employee is suspected of being under the influence of alcohol or drugs (whether prescription or illegal drugs) then you may be expected to take action to protect them and others. The action may depend on the employee’s role – for example, drug screening is much less likely to be justifiable for office workers than for drivers or those operating heavy machinery.

So, is it always reasonable to dismiss an employee for failing a drugs test?

When considering whether a dismissal for misconduct is fair, an Employment Tribunal will need to determine whether the decision to dismiss the employee fell within the ‘range of reasonable responses’ available to a reasonable employer in the circumstances.

In a recent case involving the dismissal of a bus driver who failed a drugs test, the employer’s decision to dismiss was found to be outside the range of reasonable response and therefore unfair.

Ball v First Essex Buses Limited

Mr Ball, a 61 year old diabetic, had been employed by First Essex as a bus driver for over 20 years. The company’s Drugs and Alcohol policy allowed for random testing. Mr Ball was selected for testing and underwent a saliva test, which showed positive for cocaine. Mr Ball said that he never used drugs, and suggested that the test may have been contaminated, for example, he was not required to wash his hands or wear gloves before handling the sample. Mr Ball also claimed that it was possible that the bank notes he handled were contaminated with cocaine, which could have found its way into the sample – he said that often licked his fingers, which were sore from checking his blood sugar levels every 2 hours.

Mr Ball arranged his own private drugs test (a hair follicle test) twice, which did not test positive for cocaine. However, the company rejected the results of these tests.

Mr Ball was dismissed for gross misconduct following a disciplinary hearing. He appealed against his dismissal but was unsuccessful, and brought claims for wrongful and unfair dismissal in the Employment Tribunal.

The Tribunal found that the employer had not acted within the range of reasonable responses both when investigating and when deciding to dismiss Mr Ball. The Tribunal noted in particular that:

  • The company told Mr Ball that their policy did not allow them to recognise alternative tests, however this wasn’t mentioned in the policy. They also failed to bring to Mr Ball’s attention that the policy said he could challenge a positive result.
  • Whilst the employer’s disciplinary policy said that it would carefully consider evidence submitted by the employee, they had closed their minds to all possible explanations that did not fit their predetermined conclusion.
  • Failing a random drugs test was not given as an example of gross misconduct in the disciplinary policy, however they had decided that it was sufficient evidence of Mr Ball being under the influence of illegal drugs, which was identified as being gross misconduct. The company, however, had no other reason to believe that Mr Ball had been under the influence of cocaine whilst on duty as his behaviour, good character, long service, age and health condition were all indicators to the contrary. The information from the lab was that the amounts detected were so small that he couldn’t have been under the influence of illegal drugs, but they had failed to consider this point.

The Tribunal held that a reasonable employer would have at least re-tested the employee. Mr Ball was a long-standing employee with a previously unblemished record and he was facing a career-ending decision.

Whilst there can be good reasons for employers to have a policy of carrying out random drug testing, this case highlights the risks of treating the results as “black and white” and the importance of always considering whether dismissal is reasonable in the particular circumstances.

Drug and alcohol testing will always require the employee’s consent, and any information gained through testing amounts to sensitive personal data and should be handled carefully.

We can help with preparing or reviewing policies and procedures and also with advising on tricky issues relating to alcohol and drugs in the workplace. If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Colleagues unable to work together – which to sack?

Who would want to be an employer in this situation? You have two employees who can’t work together. You have tried everything you reasonably can to resolve the issues between them, but to no avail. You don’t really want to get rid of either of them, but given the situation you have no real choice – one of them must go. How do you decide which one?

This is fortunately a fairly unusual situation for employers, but nevertheless we have certainly come across it a few times over the years. In the recent case of Simmonds v Salisbury NHS Foundation Trust (2018) the Court of Appeal produced some useful guidance for employers facing this type of situation. Ms Simmonds started work for the Trust as a trainee, but after about a year her relationship with a senior colleague started to deteriorate. After about 2 years she went to see Occupational Health alleging that her colleague was bullying her and that this was affecting her health. The Trust did then take some steps to minimise their contact and enable them to work separately, but this clearly did not work, and eventually Ms Simmonds brought a grievance against her colleague alleging bullying and harassment. The grievance was upheld, and the senior colleague was then subject to disciplinary proceedings, which culminated in her being given a final warning. This was reduced to a formal warning on appeal.

Following the outcome of the disciplinary process, Ms Simmonds went off sick suffering from stress and depression, which she said was caused by her colleague’s bullying and harassment. The employer brought in an external investigator to try to find a way forward. However, their conclusions were that the working relationship between Ms Simmonds and her colleague had irretrievably broken down, that it was not feasible for them to perform their roles without their paths crossing and that it was not possible to separate them entirely.

The Trust then invited both the employees to try mediation, and both agreed. The senior colleague met with a mediator and agreed to do whatever it took to rebuild the relationship. Ms Simmonds refused to meet face to face with a mediator, so the mediation failed. The Trust then met with Ms Simmonds and told her that her choices were to either work with the senior colleague, redeploy to a different job or to resign. Ms Simmonds told the Trust that none of these options were acceptable to her, so the Trust dismissed her on the grounds of the irretrievable breakdown of her relationship with her colleague.

Ms Simmonds brought claims in the Employment Tribunal for unfair dismissal and disability discrimination. The Tribunal held that she was not disabled, and also rejected her claim of unfair dismissal. She appealed to the Employment Appeal Tribunal (EAT) which also rejected her claims. She then appealed to the Court of Appeal. She argued that she was the innocent party and it was her colleague who had bullied and harassed her. She argued that her colleague should have been dismissed, not her. She also argued that the Tribunal was wrong to hold that she was not disabled, and finally that her unqualified representative at the Tribunal had been incompetent.

The Court of Appeal can usually only overturn EAT decisions if there has been an error of law, and in this case the Court of Appeal found that there was no error of law and that therefore the appeal failed. The Court of Appeal found that although the senior employee had instigated the bullying, that conduct did not justify dismissal. Further, once the initial bullying had been addressed by the senior colleague being formally disciplined by the Trust, she had genuinely tried to mend the relationship, whereas Ms Simmonds had made it clear that she would not work with the senior colleague and had not made any effort at reconciliation. In those circumstances, the Trust had little option other than to dismiss. The Court of Appeal also noted that Ms Simmonds did not produce any medical evidence to support her claim that she was disabled, and also held that her representative allegedly being incompetent was not grounds for overturning the decision.

In these types of situations, each case will be different, with varying factors influencing the employer’s ultimate decision. In this case, had Ms Simmonds made more of an effort at reconciliation, the outcome might have been very different.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

Purely thrilled!

We are delighted to confirm that yet again we have been recognised as a top firm in the 2019 edition of Chambers & Partners, the UK’s guide to the legal profession. In addition, Peter and Nicola have both again been rated as ‘notable practitioners’ in employment law.

The Chambers guides determine their ratings through research and client feedback, and that is what makes us the most proud. The reviews include:

“They do high-quality work, which is why I have come back to them. Their approach is very strong, and their customer service is second to none.”
“[The team is] very approachable, accommodating and understanding.”

Regarding Peter, a client is quoted as saying:

“I have always found him to be extremely knowledgeable, polite and pragmatic. Nothing is too much trouble, and every query is answered professionally, no matter how trivial it may be. I have great trust and respect for him.”

And last but not least, Nicola is described as being:

“very helpful and technically very correct, with a strong customer focus and response time. Her service is very good in addition to her pragmatism. She looks after you.”

We are a small team, but we definitely punch above our weight with the quality of our work. As a team we are always striving to give excellent client service and to keep our advice as pragmatic as possible, so it is particularly nice for us to hear that clients feel we are delivering on those points.

We are incredibly grateful to all of the clients who agreed to act as our referees, and we intend to keep up the good work – thank you!

Nicola, Peter, Marianne, Linda and Lisa

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