EMPLOYMENT LAW SEPTEMBER 2019
Employment law SOS
This month, our legal expert explores the law around lying
about previous convictions on a CV, cramped working
conditions on the shopfloor and a culture of corporate nepotism
BY TRACEY MARSDEN, PARTNER, CMS www.cms.law
We’re currently
interviewing for a
new operations director,
and have whittled the
applications down to three
final candidates. All are very
competent, but there is one
who stands out over the rest.
However, having done some
background checks, we have
noticed he spent five years
in prison about 25 years ago.
This has not been mentioned
on his application, where we
asked applicants to detail
any previous convictions,
or in the interview. We are
confident that he has served
his time – his subsequent
professional achievements
speak for themselves. What
we’re concerned about is that
he has neglected to mention
the jail time, and worry that
this could demonstrate a
tendency to lie. Is ‘being
economical with the truth’
a valid reason to reject
someone for a job?
Subject to certain exceptions,
a person who has been
convicted of a criminal offence
but who does not re-offend
during a specified period
from the date of conviction
(known as the rehabilitation
period) is considered to
be rehabilitated and their
conviction becomes ‘spent’.
Employers are prohibited
from using knowledge of a
spent conviction as grounds
for excluding a person from
employment, unless a particular
exemption applies.
However, any custodial
sentence that lasts over four
years can never be spent.
Therefore, in this particular
case, there is no prohibition
against using the conviction
as grounds to not offer
employment, if you consider it
important to deciding upon the
applicant’s suitability.
When it comes to requiring
information to be disclosed,
you should be careful when
processing data relating to
criminal records, as this is
“special category” personal
data. You should only process
such data if you have a lawful
basis for doing so, which
usually means that requesting
information regarding an
applicant’s criminal record
should only be done if it is
directly relevant to their
job. Even in cases where it is
directly relevant, you should
allegations of discrimination
or whistleblowing as refusing
employment on that basis could
constitute a detriment giving
rise to a victimisation claim.
This seems unlikely here.
A recent acquisition has
necessitated a movearound
of our shopfloor
and back offices. Whereas
previously our staff had
plenty of space to move
around in, they are now
much more hemmed in,
within touching distance
of the adjacent cells. Many
are struggling with the new
confined conditions, arguing
that there is a minimum
distance people have to be
apart at work. Is this correct?
For what it’s worth, the
smallest gap between two
cells is now 85cm; previously,
it was over two metres. Are
we breaking any laws around
work space?
It is important to ensure that
employees are given adequate
space at work as, failure to
do so may be a breach of
Regulation 10 of the Workplace,
(Health Safety and Welfare)
Regulations 1992.
These health and safety
regulations include various
requirements for workstations
and seating. The workstation
should be arranged so that
it is suitable for both the
person at work and the work
to be undertaken. There is no
minimum space required, but
there must be enough space
for the person to have adequate
freedom of movement and
to leave swiftly in the event
of an emergency.
When looking at how
many people can be placed in
only seek the information you
strictly need.
From a moral standpoint, it
can be argued that the bedrock
of the employer/employee
relationship is the mutual
duty of trust and confidence,
in particular with company
directors. Dishonesty on an
application is clearly a difficult
way to start this relationship.
If no offer of employment
has yet been made to the
applicant, this makes it easier
to reject the applicant without
fear of any breach of contract.
However, you should consider
whether the reason for the
dishonesty is in any way related
to issues such as previous
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