Dealing with Criminal Convictions or Custodial Sentences – Employer Guidance Overview

Criminal convictions or custodial sentences involving current employees can present legal and reputational challenges. This guide explains what Verifile clients (UK employers) can and cannot do when such situations arise.

Employer Options When an Employee Is Sent to Prison

Depending on the offence and sentence, employers may:

1. Take disciplinary action — which may lead to dismissal.
2. Impose a lesser disciplinary sanction — e.g. written warning or demotion.
3. Keep the role open — pending the employee’s release.

Employers must consider each case individually and act fairly and lawfully.

Legal Grounds for Dismissal (UK Employment Rights Act 1996)

Dismissal can be lawful if based on one of the following:

• Conduct: Criminal behaviour may amount to gross misconduct.
• Capability: The employee is physically unable to fulfil duties (e.g. imprisoned).
• Statutory restriction: A legal bar (e.g. disqualification) prevents employment.
• Some other substantial reason: Serious reputational damage, breach of trust, etc.

Criminal Conviction ≠ Automatic Dismissal

A conviction alone is not justification to dismiss. Consider:

• Offence relevance to the employee’s role (e.g. fraud in finance).
• Impact on working relationships, clients, and your organisation’s reputation.
• Legal restrictions, e.g. safeguarding roles or loss of driving licence.
• Duration of the sentence — short-term sentences may not justify dismissal alone.

Fair Dismissal Process — Mandatory Steps

Even if grounds for dismissal exist, the process must be fair. This includes:

1. Investigation — establish facts, consider evidence.
2. Employee's input — get their version, even if in custody (e.g. prison visit).
3. Consider mitigation — look at track record, remorse, or circumstances.
4. Consistent application — act similarly in similar past cases.
5. Right of appeal — offer and document the opportunity to appeal.

Failure to follow this process = legal risk, including unfair dismissal claims.

Case Example: Harvey v Vista Hotels Ltd

An employee jailed for 18 months was still awarded compensation after unfair dismissal due to a lack of disciplinary procedure. Key failings:

• No interview conducted in prison.
• No evidence employee was notified of dismissal.
• No opportunity to appeal.

This illustrates how even justified dismissal can be ruled unfair if procedure is skipped.

Key Considerations Before Dismissal

Ask:

• Is the offence relevant to the role or organisation?
• How long is the sentence?
• Is the employee’s absence manageable?
• Are there reputation or safeguarding risks?
• Are mitigating factors present?
• Would a lesser sanction be appropriate?

Handling Sensitive Data

• Criminal record data = Special Category Data under UK GDPR.
• Handle confidentially and securely.
• Retain only as long as necessary.
• Share only with authorised personnel.

FAQs for Employers

Summary Table