Hi all,

I am currently in the middle of transferring to a new employer under TUPE and am required to submit a CRB disclosure application as part of the transfer.

I have a conviction dating back some 10 years which is never classed as "spent" under the rehabilitation of offenders act 1974 due the seriousness of the offence and would like to know what rights, if any, I have with regards to my position with the new employer.

Any advice on this matter would be appreciated very much.

Thanks

My understanding would be that if it is a statutory requirement for you to have a clean criminal record check, and you were unable to do so, then your new employer would have no option other than to terminate your employment on the or transfer you to another role which did not require you to have no criminal record.

It does seem odd that your current employer has never requested this of you if it is a requirement for the role.

Have you disclosed the offence to your current employer and what are the nature of your duties?

Thanks for your reply f.

I currently work for a company contracted to supply manpower to cover LLU work (broadband connection/migration) in BT's exchanges .

Although my current employer has never asked me to supply a CRB disclosure under my tenure, I have always been aware of BT's policy of not directly employing people with convictions classed as unspent under the rehabilitation of offenders act.

I never disclosed to my current employer as I wasn't aware, at the time of applying, that my conviction was "unspent".

I actually applied online, some months ago, for the same position I am currently being TUPE'd across to, with the same "Specialist Recruitment Agency" that BT are transferring the workload to and disclosed my conviction then. So they should know already about my conviction and that it is not spent.

I have given 18 months of solid, dedicated, sometimes family splitting service to BT, via my current employer, which I feel should be rewarded by being given a chance to carry out the same duties, regardless of my past, when the TUPE transfer takes place next Friday.

I am hoping that as a CRB check has never been required under my current role that I be given a chance to carry on and if not will seek legal advice about the legality of ending my contract due to my previous conviction.

You must seek specialist legal advice if your employment is terminated post-transfer or if your terms and conditions of employment are varied to your significant detriment.

Whatever the CRB check throws up it seems likely that somebody at BT should be on notice of your unspent conviction.  However your position is wholly different from that of an external candidate, with an unspent conviction, who would fall foul of BT's policy and not become an employee.

Firstly, you transfer under your existing terms and conditions with your continuity of service preserved.  You do qualify for the right to bring an Unfair Dismissal claim if your employment was terminated.

Secondly, I don't know how long you have been in the service of your current employer but assume that you have a good record in all respects and that there is no reason to doubt your honesty and integrity.

If, post transfer, BT dismissed you purely on the basis of their Policy on unspent convictions then you could bring a claim on the grounds that this is generally unfair (s.98 ERA 1996) and/or that it arises from a unilateral change in your terms and conditions to your substantial detriment contrary to TUPE.

The fact that you did not disclose the conviction when you commenced your current employment could be a problem - when you became aware that your conviction was not spent you didn't draw this to your employer's attention.  Is there a contractual requirement to make any disclosure of a criminal conviction thoughout your employment? Is non-disclosure listed as (gross) misconduct in the Disciplinary Procedure?  If so, this could be grounds for termination of employment by the transferee of transferor.

I hope this is of some help to you.