Criminal Convictions ? What Can You Ask?

Tuesday, February 18, 2014

The issue of previous convictions of an employee or potential employee is one that many organisations find troublesome.

Employers can ask prospective employees during the recruitment process if they have ever been convicted of a criminal offense. However, there is no legal obligation for an employee to disclose previous convictions, but, in the event that false information is provided in relation to this, the employer may be entitled to terminate the employment on the grounds of misrepresentation. 

Recent Case In the case of Purcell v Netwatch Ireland Ltd (2007), the employer discovered that the employee had failed to disclose his previous convictions for traffic offenses during the recruitment process. The employee was summarily dismissed for providing inaccurate and untruthful information. 

The case was taken to the Employment Appeal Tribunal (EAT) who found that the claimant’s conduct had caused a breach of trust between him and his employer but that he had been unfairly dismissed and awarded the employee €4,500 under the Unfair dismissal Acts 1977 to 2001. The EAT found that the employer failed to properly investigate the claimant’s background at the time of recruitment. 

Furthermore they found that the decision to dismiss the employee was taken prior to the meeting at which the employee was dismissed. 

Implications for Employers 

Employers should 
• Ask applicants about previous criminal convictions on a character inquiry form 
• Ask applicants permission to seek Garda clearance (if required for the job) 
• Consider the relevance of different convictions to occupational tasks (i.e. do a risk assessment of the conviction vis-a-vis the role etc.) 
• Where an employee has been found to misrepresent themselves in relation to previous convictions, the employer must conduct a fair investigation and any sanctions must be proportionate to the dishonesty 
• Be able to demonstrate that the deception is material to the particular employment and/or any terms of the contract 

CollierBroderick provide HR and Employment Law support, advice and training.