Please note: In January 2015, the site was re-structured. The ‘Frequently asked questions’ section has been moved, with the content of each subject being transferred into the information subject on that subject.

Please search for the relevant information section, where you’ll find the FAQ’s relating to that subject.

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Do I have to disclose?
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You only have to disclose your record if you are asked. If you are asked, and you don’t disclose, you could be committing a criminal offence. If you are also on licence, you could be recalled for failing to disclose.

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If I'm asked, when is the best time to disclose?
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There is no fixed “best time” to disclose, despite what some people think. It always depends on your conviction, the job you are applying for, and the recruitment process.

You have options – you can disclose before application, on the application form, before interview, at interview, after interview, after job offer or once you start. There are pro’s and con’s to all of these approaches. You need to think about how to disclose your record to an employer. Click here for more information.

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I’ve done a DBS check for a job that I’ve been offered and a conviction has come up that I didn’t know was on my record. I didn’t disclose this to the employer at application or interview stage and they’ve withdrawn the job offer. Can they do this?
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Yes. As an applicant, you have very few rights. You may be able to explain why you didn’t disclose, but the employer may feel you have tried to be dishonest. Many employers don’t have an issue with the conviction, but they feel like you’ve tried to be dishonest by witholding your criminal record.

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I've recently been convicted - do I have to tell my current employer?
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It depends what you were asked about when you first took the job and what is in your contract.

You really only have to tell your employer about criminal convictions if this could have an impact on your employer and your ability to do your job.

However, there may be circumstances where because of the nature of the organisation or work that you do, that a criminal conviction could be relevant.  For example if you work for a Government body or were in finance and you were convicted of a criminal offence of say, dishonesty, then this could be relevant to your employer.

It is also worth looking at what information you disclosed when you first started working for them. Most employers ask questions relating to criminal convictions. Furthermore, they will often ask that you make them aware of any changes to the details that you provided in the application form. If you are made aware of an ongoing duty to disclose when you first take up employment, then you must inform your employer of any conviction obtained subsequently.

If you did tell your employer, it is possible that they would try to dismiss you. If they did decide to do this, then you could try to argue unfair dismissal and they would have to justify the reasons for the dismissal and that it was fair in all circumstances. If your conviction had nothing whatsoever to do with your particular role or the organisation, then it would appear difficult to justify this in the circumstances. However, cases that we have dealt with leave us to suggest that often employers will try and means possible to justify your dismissal.

Unfortunately, discrimination based on past convictions is not included in anti-discrimination legislation.

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Can an employer ask me to do a basic disclosure after I started my job?
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It depends what you were asked about regarding your criminal record when you first took the job.

If you have any unspent convictions, these will show up on a basic disclosure check and, by definition, a check means that the employer wants to take criminal records into account and, where necessary, dismiss individuals.

If it was a condition of your job that a basic check would be done, then you will have to consent to this or risk your position.

In addition, if you were asked about unspent convictions when you took the job, it would be difficult to challenge an employer who wished to confirm this information with a basic check, although if they didn’t make this a condition of your employment then you shouldn’t have to pay for it.

If you have been employed for more than two years, and you weren’t asked about your criminal record when you took the job, you should be able to refuse to consent to the check, and you might have a strong claim for unfair dismissal should this cost you your job. However, unless you are in a union that would be prepared to fund an Employment Tribunal claim, in practice you might not be able to pursue it because of the demands it would make on you. The other potential problem is that the employer might argue that the dismissal was fair because it was on the basis of an unspent offence. You could counter this argument by stating that you were not asked when originally employed. For this reason, you should tread warily. You should seek legal advice before agreeing to anything. At the very least you should be asking the employer in writing why the checks now and what the employer intends to do with the information. The written replies might be useful in contesting matters at a later stage, but verbal replies would be no good. Depending on the legal advice and the information you get from the employer, you might be better off refusing the request. This might lead to your dismissal, but you might have stronger legal grounds than you would if you were dismissed on the basis of the basic disclosure check.

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