Dismissal and Spent Convictions

[lubee7274]

Could someone point me the right direction regarding spent convictions and dismissal. It concerns a dismissal case where the position the employee was employed in was not exempt from the Rehabilitation Offenders act.An employee was convicted by Fraud by False Representation, adding amounts onto his household burglary claim. He did not tell his employer, until the employer asked him about it after receiving an anonymous email. He told the employer after he was questioned. The employee knew about this pending conviction and was going to support the employee through it. Allowed the employee to continuing working for 1 month after confirming with the magistrate’s court that the employee had pleaded guilty to fraud by false representation. After his crown court case the employee reported back to the company, and that some spent convictions were mentioned but he had these as a minor 10 – 11 years ago. The local media did a 2 min broadcast of the case, during which no mention of the company, what his occupation was, nor what his spent convictions were.The employee was suspended the next working day after his crown court appearance. The company provided a “private report” from a person who attended court on their behalf, detailing wrong spent convictions and charges which have been proven as wrong by police disclosure. The company refuse to name the writer of the report, despite the employee asking to question the writer about the inaccuracies. The company stated “the company would prefer to rely on the written report”. The employer sought spent conviction information from the employee, the employees solicitor and enquired about “other avenues” to gain this. The employee refused stating that he did not have to disclose his previous convictions he had as a minor and had not been in trouble for 10 – 11 years, he has never served a custodial sentence. It mentioned Spent Convictions in the “charge” letter, asked for them in the disciplinary meeting, quoting “I am entitled to ask for this” and In the dismissal letter it stated that they didn’t rely on spent convictions although they are disappointed that as their livelihood depended upon it the employee did not provide spent conviction information nor the prosecution evidence against him. The employee instead of his spent convictions provided a letter from his solicitors confirming the actual charges etc. The employer did not take this into account in the proceedings. The employee enquired with the employer who they were asking for information, such as third parties. The employer replied that they wouldn’t do that. The employer then produced letters from them to the insurance company asking for the prosecution evidence “as they have had trouble obtaining this from the employees representatives” – this has been lodged with the ICO. The employee raised this as a grievance and the employer has not responded. The employee has emails that state, ;just a week after they were suspended the employer asking ways to terminate the employees employment;It suggests going to a third party to have a look at his criminal record without the employees knowledge ;They also have emails after receipt of the solicitor letter from the employee stating “it appears the employee is telling the truth” and asking what else can they do to terminate their employment. From the company solicitor that it wouldn’t be safe to dismiss the employee. Summary(1);From suspension to dismissal it took two months, despite the evidence they provided in support of the dismissal they had in the first week; (2To disclose convictions, pending convictions etc is not contractual nor contained within the company handbook;(3);The role is not exempt from the ROA;(4)The employee was allowed to continue working after the employer knew of the charges and that the employee had pleaded guilty. (5)The employee’s job involves looking after considerable high value vehicles but he was allowed to continue doing this after the employee told the employer he has pleaded guilty;(6)The investigation was unreasonable, the investigating officer was changed e.g the person was a note taker in the “charge letter” but in subsequent correspondence was “investigating officer”, the then “investigating officer” had made enquires to terminate the employees employment a week into the investigation. The evidence contradicted itself, witnesses were not spoken, use of anonymous witness which evidence contained incorrect information and the employer refused to answer questions about this. The employees evidence e.g solicitors letters or their witnesses was never used to weigh up the dismissal decision, the dismissal letter said only the employers evidence was considered. (7)In the typed minutes the employer provided to the employee there were 65 omissions relating to the employees explanation including sections which said “the employee put forward questions regarding the evidence and explanations” instead of what was said. (8);In the dismissal letter the employer relied on “customers and employees” maybe not wanting to work with the employee, but this was not mentioned in the “charge” letter nor the disciplinary hearing, where the employee QuestionsA long complicated case but I need to see the wood for the trees in the below questions from a new pair of eyes;The only cases I can find regarding spent convictions and the post not exempt from the ROA are Property Guards Ltd v Taylor and anor 1982 IRLR 175, EAT and Hendry and anor v Scottish Liberal Club 1977 IRLR 5, ET. Question 1In Hendry the actual reason for the dismissal does not have to be the spent conviction but spent conviction to have played a material part in it. The fact the employer sought by third parties spent conviction information, asked several times in the disciplinary hearing for them, used spent convictions in the “charge” letter and mentioned them in the “dismissal letter” would this suggest playing a material part?Question 2They were convicted for Fraud by False Representation but the employee was allowed to remain working and signing significant amounts of invoices off, access to significant sums of petty cash, after the employer knew they had pleaded guilty to this. Does this suggest the employer accepted his conviction for fraud by allowing him to continue fully in his role and stating they would support him. It was only upon discovery of spent convictions mentioned in court that the employee was suspended and spent conviction information was asked for etc. Question 3Was the investigatory process a sham by the use of anonymous witness etc and not taking into consideration the solicitor’s letter account, the change investigating officer, not interviewing witnesses, not interviewing the employee before the disciplinary hearing. Asking for ways to terminate the employees employment a week into the two month investigation process etc?------------ Any input would be greatly appreciated

[honeybee13]

Hello there. I hope we can help with this.

 

If you were able to put some paragraphs into your post, it would make it easier for the people trying to help you. I tried hard, but it does your eyes in to be honest.

 

My best, HB

[BRIGADIER2JCS]

Emmm makes it very confusing!!

[Browncow]

Could someone point me the right direction regarding spent convictions and dismissal. It concerns a dismissal case where the position the employee was employed in was not exempt from the Rehabilitation Offenders act.An employee was convicted by Fraud by False Representation, adding amounts onto his household burglary claim. He did not tell his employer, until the employer asked him about it after receiving an anonymous email.

 

He told the employer after he was questioned. The employee knew about this pending conviction and was going to support the employee through it.

 

Allowed the employee to continuing working for 1 month after confirming with the magistrate’s court that the employee had pleaded guilty to fraud by false representation.

 

After his crown court case the employee reported back to the company, and that some spent convictions were mentioned but he had these as a minor 10 – 11 years ago.

 

The local media did a 2 min broadcast of the case, during which no mention of the company, what his occupation was, nor what his spent convictions were.

 

The employee was suspended the next working day after his crown court appearance.

 

The company provided a “private report” from a person who attended court on their behalf, detailing wrong spent convictions and charges which have been proven as wrong by police disclosure. The company refuse to name the writer of the report, despite the employee asking to question the writer about the inaccuracies. The company stated “the company would prefer to rely on the written report”.

 

The employer sought spent conviction information from the employee, the employees solicitor and enquired about “other avenues” to gain this.

 

The employee refused stating that he did not have to disclose his previous convictions he had as a minor and had not been in trouble for 10 – 11 years, he has never served a custodial sentence. It mentioned Spent Convictions in the “charge” letter, asked for them in the disciplinary meeting, quoting “I am entitled to ask for this” and In the dismissal letter it stated that they didn’t rely on spent convictions although they are disappointed that as their livelihood depended upon it the employee did not provide spent conviction information nor the prosecution evidence against him.

 

The employee instead of his spent convictions provided a letter from his solicitors confirming the actual charges etc. The employer did not take this into account in the proceedings. The employee enquired with the employer who they were asking for information, such as third parties. The employer replied that they wouldn’t do that. The employer then produced letters from them to the insurance company asking for the prosecution evidence “as they have had trouble obtaining this from the employees representatives” – this has been lodged with the ICO.

 

The employee raised this as a grievance and the employer has not responded.

 

The employee has emails that state, ;just a week after they were suspended the employer asking ways to terminate the employees employment;It suggests going to a third party to have a look at his criminal record without the employees knowledge ;They also have emails after receipt of the solicitor letter from the employee stating “it appears the employee is telling the truth” and asking what else can they do to terminate their employment. From the company solicitor that it wouldn’t be safe to dismiss the employee.

 

Summary

(1);From suspension to dismissal it took two months, despite the evidence they provided in support of the dismissal they had in the first week;

 

(2To disclose convictions, pending convictions etc is not contractual nor contained within the company handbook

 

;(3);The role is not exempt from the ROA;

 

(4)The employee was allowed to continue working after the employer knew of the charges and that the employee had pleaded guilty.

 

(5)The employee’s job involves looking after considerable high value vehicles but he was allowed to continue doing this after the employee told the employer he has pleaded guilty;

 

(6)The investigation was unreasonable, the investigating officer was changed e.g the person was a note taker in the “charge letter” but in subsequent correspondence was “investigating officer”, the then “investigating officer” had made enquires to terminate the employees employment a week into the investigation. The evidence contradicted itself, witnesses were not spoken, use of anonymous witness which evidence contained incorrect information and the employer refused to answer questions about this. The employees evidence e.g solicitors letters or their witnesses was never used to weigh up the dismissal decision, the dismissal letter said only the employers evidence was considered.

 

(7)In the typed minutes the employer provided to the employee there were 65 omissions relating to the employees explanation including sections which said “the employee put forward questions regarding the evidence and explanations” instead of what was said.

 

(8);In the dismissal letter the employer relied on “customers and employees” maybe not wanting to work with the employee, but this was not mentioned in the “charge” letter nor the disciplinary hearing, where the employee QuestionsA long complicated case but I need to see the wood for the trees in the below questions from a new pair of eyes;

 

The only cases I can find regarding spent convictions and the post not exempt from the ROA are Property Guards Ltd v Taylor and anor 1982 IRLR 175, EAT and Hendry and anor v Scottish Liberal Club 1977 IRLR 5, ET.

 

Question 1In Hendry the actual reason for the dismissal does not have to be the spent conviction but spent conviction to have played a material part in it. The fact the employer sought by third parties spent conviction information, asked several times in the disciplinary hearing for them, used spent convictions in the “charge” letter and mentioned them in the “dismissal letter” would this suggest playing a material part?

 

Question 2They were convicted for Fraud by False Representation but the employee was allowed to remain working and signing significant amounts of invoices off, access to significant sums of petty cash, after the employer knew they had pleaded guilty to this. Does this suggest the employer accepted his conviction for fraud by allowing him to continue fully in his role and stating they would support him. It was only upon discovery of spent convictions mentioned in court that the employee was suspended and spent conviction information was asked for etc.

 

Question 3Was the investigatory process a sham by the use of anonymous witness etc and not taking into consideration the solicitor’s letter account, the change investigating officer, not interviewing witnesses, not interviewing the employee before the disciplinary hearing. Asking for ways to terminate the employees employment a week into the two month investigation process etc?------------ Any input would be greatly appreciated

 

I had a bash at them there paragraphs in the hope tha OP will attract some replies

[Bang!]

Lets hope the sentence was shorter than the paragraph!!!!

[Browncow]

This is an interesting post but unfortunately I have very little knowledge in this area

 

With a quick search I found the following

 

Do I need to tell an employer about spent convictions?

 

You don't need to disclose spent convictions when applying for most jobs. Under the Rehabilitation of Offenders Act 1974 it's unlawful for an employer to discriminate on the grounds of a spent conviction. However, some types of jobs are exempt from this Act – this means you have to disclose spent convictions as well as unspent ones. These jobs include:

working with children and vulnerable adults, such as elderly and disabled people

senior roles in banking and the financial services industry

certain posts connected to law enforcement, including the judiciary and the police

work involving national security

certain posts in the prison service

certain professions in areas such as health, pharmacy and the law

private security work.

 

Did any of the above apply to the worker? If not it seems that the employer was on shaky ground when seeking further information as the following implies

 

Can an employer ask for additional information about me?

 

Depending on the job, employers can request that successful applicants apply for different types of disclosure:

 

Basic Disclosure — an employer can request this for any job (even jobs not exempt under the Rehabilitation of Offenders Act). This contains only details of unspent convictions.

 

 

Standard Disclosure is for jobs with regular contact with children or vulnerable adults and jobs exempt from the Rehabilitation of Offenders Act. This shows all convictions, including spent ones.

 

 

Enhanced Disclosure is for jobs with greater (unsupervised) contact with children or vulnerable adults and for some judicial appointments and licensing purposes. This shows all convictions, including spent ones, plus possibly other information from local police records.

 

 

The Criminal Records Bureau deals with applications for Standard Disclosure and Enhanced Disclosure from England and Wales. Basic Disclosure is only available from Disclosure Scotland, but they can deal with applications from anywhere in the UK.

 

 

It seems to me that the juvenille convictions were well spent and should not have been considered at all. However, did the employer have the right to reneg on the decision to continue to employ the worker? Their solicitor's advice seems to indicate a problem with the dismissal but expert advice is required, I think, as this area of law appears complex.

[jinny125]

Dont know if i am on the right thread here but i have a ? to ask, a friend of mine wants to apply to be the main registara of BDM in our church, the church has said this is ok even though he has a benefit fraud conviction going back 15 years, i didn't think you could apply for such a position with this conviction, on another form for another position he ticked the box for convictions with a no, he said he doesn't have to declare it as it was 15 years ago?.