Criminal Convictions: A Bar to Equality of Employment

Date01 March 1990
Pages23-26
DOIhttps://doi.org/10.1108/01425459010136829
Published date01 March 1990
AuthorJill Earnshaw
Subject MatterHR & organizational behaviour
CRIMINAL
CONVICTIONS:
A BAR TO
EQUALITY
OF
EMPLOYMENT
23
T
he Rehabilitation of Offenders Ad, 1974
has no enforcement mechanism and hence
no legal power to serve its intended
purpose.
Criminal
Convictions:
A Bar to
Equality of
Employment
Jill Earnshaw
A
fact of
life
well-documented
in
academic literature is that
certain sections of society are disadvantaged at work[1].
Obvious examples include women, those of ethnic minority
background and the disabled. Legislation has existed in
relation to these groups for many years and there is now
considerable public awareness of their vulnerability
in
the
employment
sphere.
Codes of Practice have been issued
by the Commission for Racial Equality and the Equal
Opportunities Commission informing employers how they
may go beyond the strict requirements of the law and
urging the
drawing
up
and effective implementation of equal
opportunities policies.
Less is known about those who are disadvantaged not by
colour or disability, but by the stigma of
a
criminal record.
In 1974, the Rehabilitation of Offenders Act was passed
to make it possible for certain offenders who serve their
sentence and then remain free of conviction for a
substantial period to be treated as if they had a clean
record.
However, such evidence as exists suggests that the Act
is not effective in carrying out its reforms and is in urgent
need of reform[2]. In 1988 the National Association for
the Care and Resettlement of Offenders (NACRO) called
on employers to include ex-offenders in their equal
opportunities policies[3], and the Institute of Personnel
Management
in
their Equal Opportunities Code states that
"Naturally, employers will have regard to the provisions
of the Rehabilitation of Offenders Act 1974 and not
discriminate against... candidates with spent convictions".
This article examines how the provisions of the Act and
the unfair dismissal legislation bear on offenders and asks
to what extent offenders are
a
vulnerable group
who
need
protection against discrimination at work.
Those who commit criminal offences fall into two main
groups. On the one hand there are the habitual offenders,
the recidivists who will spend the major part of their lives
in and out of
prison.
By contrast there are those who may
offend only on an isolated occasion, perhaps when
relatively
young,
and who desire to live down the past and
build
a
new
life.
Whether recidivist or
"one-off"
criminal
however, it is no doubt in the field of employment that
offenders
will
encounter most disadvantage and prejudice,
and where "living it down" will, given the present state
of the law, be most difficult.
Under unfair dismissal legislation, misconduct is a
potentially fair reason for dismissal of an employee, so
that those who commit criminal offences during the course
of their employment, or
whom
their employers reasonably
suspect of
having
committed such offences
[4]
are putting
their jobs in jeopardy. Furthermore, the fact that any such
employee is subsequently prosecuted for an offence but
is acquitted is in most cases an irrelevant consideration,
for the decision to dismiss is
a
managerial, not
a
legal one.
"Misconduct" moreover is not limited to behaviour at
work. Conduct outside the employment may justify
dismissal if it "reflects in some way upon the employer
employee
relationship"
[5].
Thus
in
Richardson
v.
City
of
Bradford Metropolitan
Council[6],
dismissal of
a
senior
meat inspector convicted of theft of money from his local
rugby club was held to be justified on the basis that the
integrity of a public servant in a position of trust was of
prime importance. However, in the case of
Bradshaw
v.
Rugby Portland Cement Co.[7] the dismissal of a
quarryman convicted of incest with his daughter
was
held
to be unfair. The criminal behaviour had no bearing on
his work, and relationships with fellow employees had not
deteriorated to the extent that they objected to working
with him.
Suppose, however, that an employee's conviction has
occurred prior to the present period of employment but
he or she was deliberately, and understandably, untruthful
about his/her criminal record at interview or on an
application form. If the conviction subsequently pomes
to light the employer is likely to have adequate grounds
for dismissal
not necessarily because the fact of the
conviction makes the employee unable to do the
job,
but

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