Many people refer to potential employment when talking about DBS checks, but what happens if you receive a warning, caution or conviction whilst employed? Do you have to inform your employer? Will the police do it for you? Care Check answers these questions and advises what employers should do in these situations.
Do you have to inform your employer about your criminal activity?
If you are caught committing a crime whilst employed, there are some circumstances where you need to inform your employer. Whether this is the case will depend on your employment contract. It should specify if you need to let your employer know of any convictions or other crime that would show up on a DBS check. If this is not specified, then you won’t legally have to reveal it to them.
If you work for a regulatory or governing body, informing them of any change in circumstances may be a condition of your employment. Say you hold a security licence; for example, if you do not disclose your crime via the correct process, your licence may be withdrawn when a new DBS check is carried out, and they find a record of crime.
If restrictions are placed on you as a consequence of the crime which impacts your ability to perform your work duties, such as revoking your driving license or banning you from certain locations, you will need to tell your employer so that you don’t breach these.
Additionally, if there is any other way your employer can find out about the crime, perhaps through the local news, contact from the police, or even workplace gossip, you need to seriously consider what the consequences will be of them finding out through these other means rather than from you.
In these circumstances, it may be worth seeking legal advice.
Remember that if your crime becomes spent immediately, you won’t have to disclose this as the Rehabilitation of Offenders Act will protect you.
Can police disclose information to employers?
In 2015, the ‘Notifiable Occupations Scheme’ was replaced with ‘Common Law Police Disclosure’. Now, police can inform your employer if they arrest or charge you with a crime. The police should use their professional judgement and only do this if they believe there is a risk to public protection.
This will most likely happen around roles that involve regulated activity, and the police should only disclose relevant information to your employer.
What should you do if your employee reveals a crime?
Even if the crime took place away from work, you are entitled to begin disciplinary proceedings as an employer. If the crime directly impacts your employee’s ability to perform their work duties, you are within your rights to revoke employment. If the crime does not impact your employee’s ability to perform their job, you may still dismiss them under SOAR (Some Other Substantial Reason).
Throughout the disciplinary proceedings, you should consider whether the crime committed means that you, your other employees and clients or customers will be in danger if you don’t dismiss the employee in question, what impact the crime will have on your company image (especially if it is widely covered in the news or is a serious crime) and how likely it is that the employee will commit another crime during their employment with you.
Remember that your employee is entitled to fair treatment at all times. You must follow the appropriate processes. Even if the company handbook specifies that immediate dismissal is an appropriate form of action, you must still go through disciplinary proceedings.
Bear in mind that if you dismiss your employee due to their disclosure, they are within their rights to either appeal the decision or take the case to an employment tribunal.
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