1 May 2013
Gareth Matthews
Job Title
With veterinary practice staff having access to drugs, plus confidential client records and detailed accounts, it’s clearly important to hire the right, trustworthy people.
THE LEGAL WATERS can get muddied on the wider issue of employing staff that have previous convictions. A recent Court of Appeal case created confusion for employers about the use of criminal records checks on employees and has left many wondering whether they will be in danger of breaching human rights if such checks are carried out.
Employers often require disclosure of a prospective employee’s criminal record, which they then use to assess suitability for employment.
For most roles, a prospective employee is only obliged to disclose details of unspent convictions. Any spent convictions – a conviction that is no longer taken into account for legal purposes – need not be disclosed. Applicants cannot be refused employment as a result of a spent conviction. Any conviction that has resulted in a sentence of 30 months or more will never be spent and must always be disclosed.
But, these rules do not apply to some roles, such as those within regulated industries (for example, the finance industry) or where the role involves contact with children or vulnerable adults – in which case, convictions must be disclosed, regardless of whether spent or unspent.
Generally, disclosures will not automatically bar someone from being employed in a particular role unless the specific rules of that industry state otherwise. Instead, employers are expected to carry out an assessment of the prospective employee’s suitability for employment in light of the disclosure. In practice, employers are likely to automatically rule out any prospective employee whenever disclosure of a criminal record is received.
Employers can still use criminal records checks and, in most cases, an employer will only be able to take into account unspent convictions. Fair practice does suggest an employer should consider the seriousness of the conviction, the time that has elapsed, the relevance of it to the role, and the individual’s explanation for the conviction or its circumstances. Furthermore, fair practice also suggests an employer should not have a blanket ban on employing people with criminal convictions.
Instead, employers should also consider other factors (such as a reference) or perhaps consider using probationary periods to assess suitability first hand. Ultimately, however, there is little onus on an employer to adhere to fair practice, not least because there is very little a prospective employee can do if they feel they have been unfairly treated.
More care is needed when dealing with criminal records disclosures in relation to current employees. Generally, if a disclosure is received before the employee has accrued sufficient service to bring an unfair dismissal claim (two years for any employee who started employment on or after April 6, 2013) and the employer wishes to terminate, dismissal should be relatively risk free.
However, for employees with unfair dismissal rights, an employer will need to tread more carefully to ensure any dismissal falls within one of the fair reasons for dismissal.
Employers would also need to ensure the process followed is fair and that the decision to dismiss is within the range of reasonable responses. This will depend on the facts in which the criminal record was disclosed and its relevance to the role being carried out. If it transpires an employee has lied about his or her criminal record, an employer may argue there has been a breakdown in trust and confidence between the parties, which might justify a dismissal for “some other substantial reason” or conduct. On the other hand, if the employee concerned has shown him or herself to be an otherwise trustworthy and competent employee (over a number of years) it may be difficult to show a decision to dismiss was within the range of reasonable responses.
FROM NEXT YEAR the RCVS states veterinary surgeons will be required to disclose any criminal convictions, cautions or adverse findings made against them since April 2006, as will those wishing to join the Register. The requirement was included in the RCVS Code of Professional Conduct launched last year, but was not immediately implemented.
At this year’s March meeting, the council decided veterinary surgeons will have to make an annual declaration as part of the renewal of their registration – starting in March 2014. Until then, disclosures will be accepted on a voluntary basis. The measure is being introduced to safeguard the welfare of animals and of the public, and brings the profession into line with other health care regulators.
The code (5.3) states: veterinary surgeons, and those applying to be registered as veterinary surgeons, must disclose to the RCVS any caution or conviction, including absolute and conditional discharges and spent convictions, or adverse finding that may affect registration, whether in the UK or overseas (except for minor offences excluded from disclosure by the RCVS).
Adverse finding means any such:
• within veterinary school or university fitness to practise procedures, in the UK or overseas (applicants to the Register only);
• of any other health care regulator in the UK or overseas; and,
• of any other veterinary regulator overseas.
Convictions that may affect fitness to practise will be referred to the preliminary investigation committee, although it is to be stressed not all convictions will fall into this category. Traffic offences dealt with via a fixed penalty do not need to be disclosed. Veterinary nurses have had to make a similar declaration since their Register was introduced in 2007 although this does not extend to spent convictions. The veterinary nurses council is yet to decide if it wishes to apply the new arrangements for veterinary surgeons to registered veterinary nurses.
Although this move is in the public interest, the college is keen it does not cause undue stress to the profession. A helpline will be set up by the RCVS over the summer for veterinary surgeons who may have convictions and wish to discuss them ahead of the disclosure period introduction.
The Home Office has started the legislative process (subject to agreement by parliament) so certain old and minor cautions and convictions will no longer be disclosed on a Disclosure and Barring Service (DBS) certificate. This is in response to the Court of Appeal judgement in January this year, which stated the disclosure of all cautions and convictions on a DBS certificate was incompatible with article eight of the Convention for Human Rights.
Since the judgement, the Government has been working very closely with the Home Office to develop a set of filtering rules that would remove certain old and minor convictions and cautions from a DBS certificate. The filtering rules – now before parliament for consideration – are that an adult conviction will be removed from a criminal record certificate if:
• 11 years have elapsed since the date of conviction; or
• it is the person’s only offence, and it did not result in a custodial sentence.
Changes will not come into force until after the legislation has completed its passage through parliament.
