Employers rights to asking about criminal investigations

Can employers ask if an employee is facing criminal investigation or charges?

While an employer can ask whether an employee has been arrested, there is no obligation on the part of the employee to disclose this information, unless they meet either of the following conditions:

• Their job is covered under the Rehabilitation of Offenders (ROA) Act 1974 (Exceptions Order) 1975; or
• If there is a requirement to disclose criminal offences clearly outlined in their contract of employment.

There is also the question as to whether their criminal offence is spent or not (i.e., whether their rehabilitation period has passed without further offence).

If their conviction is spent, then the employee can withhold this information from their employer as they are considered rehabilitated.

However, the length of the rehabilitation period (prior to becoming a spent conviction) can vary depending on the offence and, in some cases, convictions may never be classified as spent.

Furthermore, roles exempted under the ROA would still require a spent conviction to be disclosed.

If neither of the above conditions applies, employers could hold an informal meeting to ask for clarity, but it still doesn’t mean the employee has any obligation to inform the employer.

And if an employee does disclose a current/ongoing criminal offence, although you may ask to be kept informed, any information provided should be kept confidential.

In order to reduce the impact of this issue, employers can include an express term within their contract of employment, specifically regarding reporting criminal offences.

The clause would require employees to disclose any current and/or ongoing arrests, investigations, prosecutions or convictions outside of the workplace immediately.

How does this vary during the recruitment process?

There are further considerations that employers must consider when asking potential candidates about any criminal offences during the recruitment process.

Firstly, it is important that employers assess whether the role being advertised requires the disclosure of any criminal convictions. If it is considered unnecessary, then the collecting of such data could be considered excessive and a breach of the rules under GDPR and the Data Protection Act 2018.

It is also recommended that employers who need to ask about any criminal convictions provide guidance for candidates about what is considered spent/unspent, and any exemptions that may apply.