Dismissal for Failure to Disclose Criminal Record

Failing to disclose criminal convictions when required can lead to dismissal, but your duty to disclose depends on several factors.

Legal Framework

Rehabilitation of Offenders Act 1974

Protects people with spent convictions:

• After rehabilitation period, conviction is "spent"
• Don't need to disclose spent convictions for most jobs
• Can lawfully answer "no" to conviction questions
• Cannot be dismissed or refused work for spent conviction

Rehabilitation Periods

Depend on sentence:

Sentence	Rehabilitation Period (Adults)
Prison up to 6 months	2 years
Prison 6 months to 2.5 years	4 years
Prison 2.5 to 4 years	7 years
Community order	1 year from end of order
Fine	1 year
Conditional discharge	Period of discharge

Periods halved for under-18s at conviction.

Exceptions to Rehabilitation

Certain roles require disclosure of ALL convictions:

• Working with children or vulnerable adults
• Healthcare positions
• Legal professions
• Law enforcement
• Financial services (some)
• Teaching
• Social work
• Any role subject to standard or enhanced DBS check

When You Must Disclose

Job Application Questions

If application asks about convictions:

Question	Must Disclose
"Do you have any unspent convictions?"	Only unspent
"Do you have any convictions?"	Depends on role
"Do you have convictions including spent?"	Only if role is excepted

Role Requires DBS Check

If job requires:

• Standard DBS check - shows unspent convictions and cautions
• Enhanced DBS check - may show spent convictions too
• Enhanced with barred list check - all relevant convictions

You should disclose before DBS check reveals it.

Contract Requires Disclosure

Some contracts require:

• Notification of arrest or charge
• Disclosure of convictions during employment
• Updates to criminal record status

Check contract terms carefully.

What Happens If You Don't Disclose

Discovery of Non-Disclosure

Employer finds out through:

• DBS check results
• Reference from previous employer
• Social media or news reports
• Colleague knowledge
• Police notification

Potential Consequences

Employer may:

1. Investigate circumstances
2. Invite to disciplinary hearing
3. Dismiss for:
   • Dishonesty on application
   • Breach of trust and confidence
   • Failure to meet role requirements
   • Gross misconduct

When Dismissal May Be Fair

Dishonesty on Application

Dismissal usually fair if:

• Application asked about convictions
• You were required to disclose
• You lied or concealed
• Even if conviction wouldn't have prevented employment
• Dishonesty itself is gross misconduct

Role Incompatibility

Fair dismissal if:

• Conviction incompatible with role
• Would not have been employed if known
• Cannot continue in role legally
• Trust destroyed by non-disclosure

Examples

Scenario	Fair?
Lied about fraud conviction, work in finance	Very likely
Failed to disclose violence conviction, work with vulnerable adults	Very likely
Didn't disclose spent conviction, role doesn't require it	No
Minor conviction unrelated to role, genuinely forgot	Possibly not

When Dismissal May Be Unfair

Spent Convictions

Unfair if:

• Conviction was spent
• Role doesn't require full disclosure
• You correctly answered "no" to unspent conviction question
• Employer discriminating against spent conviction

Not Asked or Required

Unfair if:

• Application didn't ask about convictions
• Role doesn't require DBS check
• No duty to volunteer information
• Dismissal for spent conviction in non-excepted role

Disproportionate Response

May be unfair if:

• Minor conviction unrelated to role
• Disclosed during employment
• Genuine misunderstanding
• First offence with mitigation
• No actual impact on role

Spent Convictions Protection

For Most Jobs

Cannot be dismissed for spent conviction:

• If role not excepted
• If answered truthfully about unspent
• If never asked
• Protection under ROA 1974

Excepted Professions

No protection in roles like:

• Working with children
• Healthcare
• Legal work
• Law enforcement
• Positions of trust

Must disclose all convictions even if spent.

The Dishonesty Element

Lie vs Conviction

Key distinction:

Issue	Employer Focus
The lie	Dishonesty on application - gross misconduct
The conviction	May or may not have prevented employment

Often the dishonesty, not the conviction itself, justifies dismissal.

Examples

Scenario 1: You have minor theft conviction (spent), role doesn't require disclosure, application asks about "unspent convictions", you answer "no".

• Truthful answer
• Cannot dismiss for this

Scenario 2: You have fraud conviction (unspent), application asks about convictions, you answer "no".

• Dishonest answer
• Fair to dismiss

Genuine Mistakes vs Deliberate Concealment

Factors Tribunal Considers

• Did you understand the question?
• Was rehabilitation period confusing?
• Did you genuinely believe spent?
• Was it deliberate concealment?
• Have you been honest since discovery?

Mitigation

Helps if you can show:

• Misunderstood spent/unspent status
• Calculation error on rehabilitation period
• Believed conviction didn't need disclosure
• Attempted to disclose but wasn't recorded
• Disclosed at first opportunity when realized

DBS Checks

Types of Check

Check Type	Shows
Basic	Unspent convictions only
Standard	Spent and unspent convictions, cautions, reprimands
Enhanced	As standard plus local police information
Enhanced + barred list	As enhanced plus barred list check

Disclosure Timing

Best practice:

• Disclose before DBS check
• Don't wait for check to reveal
• Shows honesty and transparency
• May be viewed more favorably

DBS Reveals Conviction

If DBS check shows what you didn't disclose:

• Employer will investigate
• You'll be asked to explain
• Dishonesty will be key issue
• May be dismissed

Criminal Records at Work

Disclosure During Employment

If contract requires:

• Notify arrests or charges
• Disclose convictions during employment
• Update criminal record status
• Failure may be gross misconduct

New Conviction While Employed

If you're convicted during employment:

• Check contract for disclosure duty
• Consider if affects ability to do job
• May need to disclose even if not contractual duty
• Employer may find out anyway

Process Requirements

Fair Investigation

Before dismissing, employer should:

1. Establish facts about conviction
2. Establish what you were asked/told
3. Understand your explanation
4. Consider relevance to role
5. Assess dishonesty element
6. Consider alternatives

Disciplinary Hearing

You should:

• Be invited to formal hearing
• See evidence (application form, DBS, etc.)
• Have chance to explain
• Raise mitigation
• Right to be accompanied
• Right of appeal

Mitigation Arguments

What to Raise

• Length of time since conviction
• Age when convicted
• Circumstances of offence
• Rehabilitation since
• Relevance (or not) to current role
• Whether you'd have been employed anyway
• Quality of work since
• Impact of dismissal
• Genuine misunderstanding

Rehabilitation Evidence

Show:

• Clean record since
• Positive changes made
• No repetition risk
• Good employment history
• Character references
• Remorse and understanding

Challenging Dismissal

Grounds to Challenge

• Conviction was spent and role not excepted
• Never asked about convictions
• Answered truthfully to question asked
• Dismissal disproportionate
• Process unfair
• Discrimination
• Spent conviction wrongly relied on

Evidence Needed

• Application form or recruitment documents
• Job description and role requirements
• DBS check type required
• Rehabilitation period calculation
• Communications about disclosure
• Evidence of misunderstanding

Discrimination Issues

Protected Characteristic

Consider if dismissal relates to:

• Disability (if conviction linked to disability)
• Race (disproportionate impact)
• Age (youthful offence)
• Religion (conscientious objection)

Spent Convictions Code

Dismissing for spent conviction in non-excepted role:

• May be unlawful under ROA 1974
• Can claim unfair dismissal
• No need to show discrimination

Practical Scenarios

Scenario 1: Didn't Disclose Spent Conviction

Role: Office administrator Conviction: Theft 10 years ago (spent) Application: Asked about "unspent convictions" Answer: "No"

Result: Truthful answer, cannot fairly dismiss

Scenario 2: Lied About Unspent Conviction

Role: Accountant Conviction: Fraud 1 year ago (unspent) Application: Asked about "convictions" Answer: "None"

Result: Dishonesty on application, likely fair dismissal

Scenario 3: Failed to Disclose in Excepted Role

Role: Teaching assistant Conviction: Assault 5 years ago (spent but role excepted) Application: Asked about "all convictions" Answer: "None"

Result: Must disclose in excepted role, likely fair dismissal

Scenario 4: Genuinely Forgot Minor Conviction

Role: Retail Conviction: Minor public order 12 years ago, believed spent Application: Asked about "unspent convictions" Answer: "No"

Result: Genuine mistake, mitigation strong, may not be fair to dismiss

Prevention Strategies

For Job Seekers

• Understand spent/unspent status
• Calculate rehabilitation periods correctly
• Read questions carefully
• Answer exactly what's asked
• Seek advice if unsure
• Be honest if in doubt
• Disclose early if required

Before Applying

• Check if role is excepted
• Understand DBS requirements
• Calculate rehabilitation period
• Seek legal advice if complex
• Get certificate of conviction (if needed)

Summary

When You Must Disclose

• Unspent convictions if asked
• All convictions if role is excepted
• If contract requires disclosure
• If asked specifically

When You Don't Need to Disclose

• Spent convictions in non-excepted roles
• If not asked
• Convictions that are protected
• If role doesn't require disclosure

Dismissal May Be Fair If

• Lied on application
• Failed to disclose when required
• Conviction incompatible with role
• Dishonesty destroyed trust
• Fair process followed

Dismissal May Be Unfair If

• Conviction was spent and role not excepted
• Never asked about convictions
• Genuine misunderstanding
• Disproportionate response
• Process unfair

Key Takeaways

• The dishonesty is often worse than the conviction
• Spent convictions are protected for most jobs
• Excepted roles require full disclosure
• Read application questions carefully
• When in doubt, disclose or seek advice
• Fair process still required before dismissal

Criminal records are sensitive. Understanding your obligations and rights helps you navigate disclosure honestly while protecting your employment prospects and legal position.