What should you do if an employee discloses that have been charged or convicted of a criminal offence?
Whilst managing current or prospective employees with a criminal record or criminal charge can be difficult for employers, there are steps that can be taken to minimise legal risk, according to Jacob Reddie, solicitor at PCC Lawyers.
Ensure up to date policies
Employers should implement and keep up to date policies that require its employees to disclose if they have been charged or convicted of a criminal offence.
Furthermore, it should be made clear to job applicants the requirement to disclose a criminal charge or conviction and the reason why such disclosure is necessary. The existence of up to date policies is especially important for employers who have vulnerable clients, such as children.
Once disclosure has been made to the employer, they are then able to assess whether the conduct damages the relationship between employee and employer, damages the employer’s business interests or reputation or is incompatible with the employee performing their duties as an employee.
Apply policies consistently
It is not uncommon for employees who have been disciplined or terminated because of their criminal charge or conviction to claim that the employer is unfairly targeting them.
Employers should ensure they apply policies relating to the disclosure of criminal records fairly and consistently. That way, employers cannot be accused of applying the policies vindictively to target certain employees.
All employees are entitled to procedural fairness in disciplinary proceedings, even those convicted of or pleading guilty to heinous crimes such as in the matter of Mr Wakim discussed previously.
A good preliminary step for employers to take is to discuss the criminal charge or conviction with the employee to hear their side of the story. There may be additional circumstances that influence how the employer proceeds.
If after this discussion and considering all the information at hand, a preliminary view has been formed that the employee’s employment should be terminated, it is crucial that the employer informs the employee of this position and then allows the employee a right of reply.
The employee’s response must be carefully considered by the employer before a decision is reached. Employees are also entitled to a support person being present at a disciplinary meeting.
This is part two of our two-part series into criminal records during recruitment and employment. To read part one, click here.