The controversy surrounding the footballer Ched Evans’ attempted return to work has been well reported. Evans was released from prison last year, having served half of a five-year sentence for rape. Evans was employed as a professional footballer prior to his conviction, and since his release has come close to securing employment with two football clubs. In both cases, it appears that public and stakeholder pressure has prevented each club from signing him. The case highlights a number of employment issues around employing individuals who have been, or during the course of their employment are, convicted of a criminal offence.

The issues faced by an employer in such a situation will depend on the individual’s length of service (if any), 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 any obligations to the relevant individual, and undertaking appropriate due diligence.

This issue will generally be easier to address when it arises on recruitment: i.e. where a candidate applying for a role has previously been convicted of an offence. An employer may ask an individual about their criminal record – though if a conviction is spent, the employee can hold themselves out as having a clean record. The public policy behind this is one of rehabilitation (hence the Rehabilitation of Offenders Act). Certain roles and positions are excluded from this general rule, including working in certain capacities with vulnerable adults and children.

Where an offence is committed by an existing employee, the situation can be more complicated. If the individual has two years’ service, the employer will need to assess whether events are sufficient to justify dismissing the individual under the usual unfair dismissal rules. Key to this assessment will be whether the offence has any bearing on the person’s role. For example, it would be easier to defend the dismissal of a treasurer for fraud, than someone whose role involved no access to, or responsibility for, funds.

Where an employee’s offence outside of work is going to be taken into account, the employer will be in a much stronger position legally if it has been communicated in advance to employees (for example via the disciplinary policy) that an employer may consider such offences to be a disciplinary matter.

Where there is an ongoing police investigation into an employee’s conduct (whether inside or outside of work), an employer may be reluctant to wait until that investigation has concluded until it takes disciplinary action, or indeed moves to dismissal. It is possible fairly to dismiss an employee in such a situation, but this can be a high risk approach and advice should always be sought as early as possible.

Employers are unlikely to face the public scrutiny which Evans’ potential new clubs did. However, as that case demonstrates employers will need to take into consideration how stakeholders (including funders and other staff) may feel about any particular individual situation. In many cases, such factors will weigh heavily on an organisation’s decision making process, and it is important to balance those pressures with any obligations the employer may owe the individual in question.

Posted on 23/01/2015 in Legal Updates

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