Hiring an ex-offender – the impact of legal reforms on hospitality sector employers

Posted: 05/04/2013

The hospitality sector is one of the biggest hirers of ex-offenders. They can be a potential resource for the industry with skills and manpower shortages. But what must employers consider when hiring ex-offenders?

You may wish to carry out a criminal record check where members of staff are placed in a position of trust with cash or the property of your guests or have a role which is integral to the ethos and reputation of your business. Such checks, now processed by the Disclosure and Barring Service (DBS) should only be carried out following a conditional offer of employment.

Under the Rehabilitation of Offenders Act 1974, criminal convictions, cautions, warnings and reprimands are deemed to be ‘spent’ after a period of rehabilitation. Prison sentences of 30 months or more (shortly to be increased to 48 months) are excluded and can never be ‘spent’. ‘Spent’ convictions will not need to be disclosed by a job applicant unless the applicant is applying for a role which is excepted by the ROA (Exceptions) Order 1975. This exceptions list has been expanded by the Freedom of Information Act 2012 to include employees whose work involves regularly caring for, training, supervising or being solely in charge of children and vulnerable adults. This could potentially extend to a crèche service or kids club in a hotel or resort.

The current system of permitting the blanket disclosure of a person’s criminal history was legally challenged recently in R (T and others) v Chief Constable of Greater Manchester and others [2013]. The Court of Appeal held that current practice breaches a job applicant’s right to respect for privacy under European laws and that a balance needs to be struck between protection for employers and interference with a person’s right to privacy. In particular, the following should be taken into account:

• the seriousness of the offence
• the age of the offender at the time of the offence
• the sentence imposed or other manner of disposal
• the time that had passed since commission of the offence
• whether the individual had subsequently re-offended
• the nature of the work that the individual now wishes to do 

The case is currently going to the Supreme Court but in March 2013, the Government indicated that it is proposing to relax the current laws as follows:

Job applicants under 18

• conviction resulting in a non-custodial sentence - removal after five and a half years
• caution - removal after two years  

Job applicants over 18

• conviction resulting in a non-custodial sentence - removal after 11 years
• caution - removal after six years  

Unfortunately, the proposed legal reform does not appear to take into account the final recommendation of the Court of Appeal ie the relevance of the offender’s criminal history to the nature of the work the job applicant would be doing. Therefore, it is up to employers to decide whether it is appropriate to hire an ex-offender. For many hospitality employers, the key concerns would be around potential negative publicity and the risk of the job applicant re-offending (eg theft and drugs). Experience however shows that if given a chance to succeed in a job, ex-offenders can be loyal and hard working and that stable employment for an ex-offender can reduce or remove the risk of re-offending.

The DBS states that employers are required to ‘treat DBS applicants who have a criminal record fairly and not to discriminate because of a conviction or other information revealed’. It recommends that employers have a policy on recruiting ex-offenders, a sample of which can be found here. 

Another useful source of contact for employers considering the recruitment of ex-offenders is NACRO (National Association for the Care and Resettlement of Offenders). Please visit www.nacro.org.uk for further details of available support.

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