Charities employing people with criminal records

Employees with criminal records, or those who have been accused of, or charged with, criminal offences, may present particular risks for employers within the charity sector. Let us take a look at some of the more common questions that arise.

CAN OUR CHARITY EMPLOY SOMEONE WITH A CRITICAL RECORD? Potentially – but this will depend upon what the offence is and what potential impact it could have on the proposed role for the individual. Particular care should clearly be taken where the role involves working or interacting with more vulnerable members of society, or dealing with charitable funds.

CAN WE REFUSE TO EMPLOY SOMEONE WITH A CRIMINAL RECORD? This will depend on whether their conviction is spent or unspent, and whether they are applying for an excepted occupation, profession or office (such as roles working with children or vulnerable adults).

Spent conviction

If the conviction is spent, then unless the role is for an excepted occupation, profession or office, employment cannot be refused on this ground. Where the role is for an excepted occupation, profession or office, employment may be refused, and in certain circumstances should be refused.

If the conviction is unspent, then a charity employer may refuse to employ the individual. However, it would be usual to consider whether the conviction actually affects the role for which they are applying.

WHAT IF SOMEONE DOESN’T DISCLOSE A CRIMINAL CONVICTION? Again, this will depend on whether their conviction is spent or unspent. If their conviction is spent, then they are under no obligation to disclose this unless they are applying for an excepted occupation, profession or office.

If the conviction is unspent (or is spent but they are applying for an excepted occupation, profession or office) and the employee/applicant does not disclose this in response to a direct request, then an employer may wish to take further action if either the nature of the conviction affects the role that the individual is carrying out (or is to carry out), or if concerns over the employee’s honesty affects their suitability.

Individual circumstances

It is suggested that employers seek advice on the individual circumstances, particular if the individual has been employed for some time before the issue comes to light.

WHAT IF A CHARITY EMPLOYEE IS ALLEGED TO HAVE CARRIED OUT A CRIMINAL OFFENCE IN THE COURSE OF THEIR DUTIES? DOES THE EMPLOYER NEED TO AWAIT THE OUTCOME OF THE POLICE INVESTIGATION OR ANY SUBSEQUENT COURT CASE? Not usually.

However, if the employer is proposing to dismiss for conduct-related reasons, then the same usual principle will apply: it must have a reasonable belief in the employee’s guilt, it must have reasonable grounds for that belief, and it must have carried out a reasonable investigation. The mere fact of a police investigation would not be sufficient, nor would a decision to charge.

But where the offence occurs in the course of their duties, the employer is likely to have access to further evidence on which to base its decision.

In some cases, it may also be appropriate to “clear” such action with the police first, so as not to prejudice any ongoing investigations.

WHAT ABOUT OFFENCES OUTSIDE WORK? CAN CRIMINAL CHARGES FOR AN OFFENCE OUTSIDE WORK SUPPORT A CONDUCT-RELATED DISMISSAL? In limited circumstances, yes. However, the offence must be relevant to the nature of the work in question. For example, fraudulent offences may well be wholly incompatible with a role dealing with charitable donations. This would also be particularly relevant if the role in question affords the employee the opportunity to commit offences of the type for which they have been charged.

Sufficient evidence

Where the offence takes place outside work (and the individual has not been convicted), the employer may not, however, have sufficient evidence available to justify a conduct dismissal. An exception to this may be where another employee is in some way involved – perhaps as the alleged victim – and so the employer is able to investigate the allegation.

WHAT ABOUT REPUTATIONAL DAMAGE? If there is insufficient evidence available to support a conduct-related dismissal, the employer may still wish to take action on other grounds. Although “innocent until proven guilty” underpins our criminal justice system, this does not mean that an employer is required to continue to employ an employee who is charged with a criminal offence where, if found guilty, this could damage the charity’s reputation.

This was precisely the position in the Employment Appeal Tribunal (EAT) case of Lafferty v Nuffield Health. Mr Lafferty was employed as a hospital porter in Glasgow and his role included transporting anaesthetised (and therefore particularly vulnerable) patients to and from theatre.

He was charged with assault to injury with intention to rape. Nuffield Health took the decision to dismiss Mr Lafferty, deciding that the risk to its reputation of continuing to employ him was too great. The Employment Tribunal concluded that this dismissal was fair and its decision has been upheld on appeal.

Acquittal outcome

This does not mean that it will always be fair and reasonable to dismiss in these circumstances and the EAT readily acknowledged that it had found this case to be a difficult one – perhaps made more so by the fact that Mr Lafferty had in fact been acquitted after the original Employment Tribunal hearing and before the EAT.

WHAT ADDITIONAL FACTORS SHOULD BE CONSIDERED IN “REPUTATIONAL DAMAGE” CASES? There is indeed a risk of injustice to employees if employers rely on charging decisions where the employee is contesting that charge and has not yet had an opportunity to fully challenge those allegations.

Nevertheless, in line with the previous guidance given in Leach v Ofcom, the relevant test when considering an unfair dismissal claim is not whether the employee has suffered an injustice; it is whether the conduct of the employer towards him was fair.

The extent to which an employer can challenge information provided by the police, the CPS or another official body may well be limited, and employers will often not have the expertise of resources to realistically test the evidence provided. But this does not mean that they should not take a critical view – some inquiry is required.

However, where the employer is not trying to rely on an assertion that the individual is guilty of the criminal misconduct alleged – but rather is taking action because of the adverse effect that the fact of the charge could have on its reputation - the investigation will be justifiably more limited.

Particular scrutiny

In the Lafferty case, it was held that the employer was entitled to take into account the particular scrutiny that it was facing within the charitable sector as a result of recent conduct in relation to employees engaging in sexual offences. It was also entitled to take into account the risk of reputational damage which would arise out of a suggestion that the employer had continued to place vulnerable patients at risk.

Alternatives to dismissal should be considered. The employer in Lafferty considered that the only other option potentially available to it was suspension. Given that this would involve full pay, and would be open-ended as Mr Lafferty was unable to provide any timescales as to when his criminal trial would take place, Nuffield Health concluded that this would not be a reasonable expenditure, given its charitable status. This decision was held to fall within the band of reasonable responses open to a reasonable employer.

It is worth noting that the employer did, in this case, confirm to the employee that if acquitted, he could return to work on the same terms and conditions and with continuity preserved. His post was held open in the interim, covered by temporary staff. Mr Lafferty did in fact return to his role after his acquittal.

Please also remember that, unlike gross misconduct dismissals, an employee who is dismissed for reputation-related reasons will be entitled to be paid notice.

WHAT ABOUT OFFENCES COMMITTED ABROAD BY EMPLOYEES OF INTERNATONAL CHARITIES? DOES IT MAKE A DIFFERENCE IF THE HOST COUNTRY DOES NOT PROSECUTE? Assuming the employee is UK based and was travelling at the time, then whether or not the offences are committed abroad or in the UK does not affect the principles set out above and so the determinative factor would not be whether or not the host country decided to prosecute.

However, practically speaking, it is likely to be considerably harder for the employer to be able to access information in respect of any ongoing investigation.

Wholly abroad

Where the charity employee is wholly based abroad, consideration would need to be given to jurisdiction, and which employment laws were applicable, before decisions were taken in respect of terminating employment.

WHAT HAPPENS IF THE EMPLOYEE IS DETAINED IN CUSTODY? There may be also additional issues caused if the employee is detained (whether in the UK or abroad) during the investigation or following a charge being made as a prolonged absence could provide the employer with additional grounds for terminating employment.

This will always depend upon the circumstances of the case – such as the likely length of the detention and whether any such absence can reasonably be sustained by the employer – and so advice in respect of individual circumstances should be sought.

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