Failure to disclose a past conviction
Kawol v Caring Homes Limited, Employment Appeal Tribunal 28 June 2005, EAT website September 2005
An employee’s failure to disclose a past conviction was found to have breached the trust and confidence between him and his employer, leading to his dismissal.
Mr Kawol applied for a job with Caring Homes. On his application form, he was asked to disclose whether he had any convictions and he failed to disclose a conviction for assault. Initially, the employer did not take up a criminal record search but one was conducted at a later date, following the appointment of a new manager. Consequently, Kawol’s past conviction came to light.
He was subject to a disciplinary process, and then dismissed. His appeal was unsuccessful. Kawol brought a tribunal complaint claiming that he had been unfairly dismissed. The tribunal accepted that the dismissal was unfair because the employer had failed to undertake preliminary investigations before the disciplinary hearing.
However, it found that by failing to disclose his conviction, Kawol had contributed 100% to his dismissal and therefore he was not awarded any compensation.
The Employment Appeal Tribunal (EAT) rejected Kawol’s appeal. The tribunal had found that Kawol was dismissed, not because he had a previous conviction per se, but because he was under an obligation to disclose that previous conviction and had failed to do so.
Kawol was a manager working, largely unsupervised, at night and with responsibility for junior staff. His non-disclosure had breached the trust and confidence between employer and employee, such that he could no longer remain employed. The failure to disclose had contributed 100% to his dismissal and therefore the EAT’s decision to reduce compensation to nil was upheld.
Guidance on past convictions
It is acceptable to ask about past convictions on an application form but a candidate is not required to disclose or provide details of convictions that are classed as ‘spent’ .
Whether a conviction is spent or not is determined by the Rehabilitation of Offenders Act 1974 and depends on the nature of the sentence and the time lapsed since the sentence was imposed.
Certain professions, such as doctors and dentists, are exempt from these rules and are always obliged to disclose convictions, even if they are spent .
Ensure you comply with the Data Protection Act 1998 when collecting personal data.