Employing an ex-offender – retribution or rehabilitation

Society believes that an offender should be punished for their crime. However, it also recognises that once the punishment has been served, the offender should be rehabilitated back into society having served their “time”.

The recent media coverage and furore surrounding the case of footballer Ched Evans, who was convicted of rape and imprisoned in 2012, has placed the subject of employing offenders firmly in the spotlight.

The issues faced by an employer in such a situation will depend on the individual’s length of service, the nature and seriousness of the crime, and whether the conviction is spent or unspent. In all cases, the key to an employer successfully navigating this difficult area will be ensuring that they have a clear and comprehensive understanding of their rights and obligations (if any) to the relevant individual, and undertaking appropriate due diligence.

The Rehabilitation of Offenders Act 1974 prohibits an employer using knowledge of a spent conviction as grounds for excluding or dismissing a person from employment. However there is no specific penalty provided for breaking the law here. Under the Exceptions Order, certain roles are excepted and examples include lawyers, teachers, police officers and those who provide health services.

Whether or not an employer can safely dismiss someone will depend upon the circumstances. It is extremely unlikely that a dismissed employee could allege discrimination because they would have to rely upon one of the so-called protected characteristics.

However, if the employee has sufficient qualifying service to bring an unfair dismissal claim, and the dismissal is based merely on the discovery that the employee has a spent conviction, then it will not fall within the range of permitted reasons for a dismissal.

An interesting point for consideration is whether or not an employee who resigns because they are asked to work alongside, for example, a convicted rapist, could have a claim of their own for constructive dismissal. An employer would need to be alive to this potential issue.

It is important that employers avoid making kneejerk reactions and consider what bearing, if any, the offence has on the particular role in question.