It was just over 20 years ago in January 1995 that Eric Cantona, the then Manchester United footballer, stunned the world of sport by landing a kung-fu style kick on a spectator at Selhurst Park during a match.
In what some see as an enlightened approach to man management Alex Ferguson stood by the player and rather than sack him he was fined and suspended by the club.
Should any of us assault a member of the public during the course of our employment (even if we are sworn at as Eric was) it would not be unreasonable in many instances if our employer dismissed us for gross misconduct.
Every now and again a high profile case can raise wider questions related to employment law and the case of the convicted rapist and footballer Ched Evans is a good example.
The former Sheffield United player was on the verge of signing for Oldham recently but after a tidal wave of negative public opinion and sponsor unrest the deal fell through. The controversy serves to highlight the difficulties of recruiting a high profile personality with a conviction. While most employment situations will not involve such difficulties of bad publicity and sponsor pressure, it is worth bearing in mind that employers do need to be aware of the issues relating to employing ex-offenders.
It may have passed many employers and prospective employees by, but in March of last year the Rehabilitation of Offenders Act was amended so that most convictions now become “spent” in a shorter period of time. The amendments also increased the number of sentences which could become spent. Exempt occupations (for example, those involving working with children) remain disclosable to the employer.
It is unlawful for an employer to refuse to recruit, or to dismiss, an employee because of a spent conviction. However in reality there is not much employees can do to complain about their treatment, unless they satisfy the two-year service requirement for an unfair dismissal claim. However, since the government introduced changes to remove some old and minor offences appearing on disclosures, employers should be especially careful when not hiring a prospective employee or firing an existing one.
Things are a little tricky for prospective employees too and many people will not be aware that when asked to complete a Disclosure and Barring Service (DBS) application form that the question: ‘have you ever been convicted of a criminal offence or received a caution, reprimand or warning?’ should actually be ignored and treated instead as if they were being asked ‘do you have any unspent convictions, cautions, reprimands or warnings?’
What happens if an existing employee is convicted of an offence during the course of their employment? If the employer dismisses them they still need to ensure that the dismissal is not an unfair dismissal and that will mean following the correct procedures. Sometimes the employment contract will assist as it may exclude certain offences or place on the employee the obligation to notify the employer of any conviction received during employment. But even where the contract is clear it may not give a valid defence against an unfair dismissal claim for dismissing an employee with a conviction.
As with Cantona and Evans much will depend upon how valuable the member of staff is to the business as balanced against any reputational or other commercial risk. As always, expert advice should be sought.