Employees and Criminal Convictions

The Employment Equality Acts 1998 - 2011 currently provides for nine equality grounds, namely gender, age, race, sexual orientation, civil status, family status, disability, religion and member of travelling community. In recent interview minister Aodhán Ó’Ríordáin, has stated he has no intention to add criminal convictions to the list of discriminatory grounds rather the issue is best dealt with under the new Spent Convictions Bill. Spent Convictions Bill The Spent Convictions Bill was proposed in 2012 and has passed all stages to date and is currently awaiting report stage at the Dail. The aim the Bill is to provide for the rehabilitation of offenders into the employment market. Having a criminal conviction and securing employment can sometimes prove difficult given the concern employers have with reputational damage as well as issues of trust and confidence. The Bill provides for a system whereby certain convictions can be omitted after a number of years (7 years) have elapsed since the conviction(s) were imposed. The Bill is awaiting report stage in the Dail when further amendments are likely to be introduced with a view to the Bill’s early enactment afterwards. Pending this an Administrative Filter for Garda Vetting Disclosure has been introduced which provides that certain minor offences that are over 7 years old are no longer disclosed through Garda Vetting. The main provisions of the Bill are as follows:

• No more than 2 convictions may become spent;
• The conviction-free periods that must be served before a conviction will become spent range from 3 years for a small fine to 7 years for a 12 month prison sentence;
• Anyone seeking to work with or provide services (care and accommodation) to children (under 18) or vulnerable adults will have to declare their convictions;
• A range of employments, including those relating to the security of the State, the administration of justice and other sensitive positions, are excluded;
• Convictions will have to be disclosed when applying for certain licences (taxis, private security, etc);

What if an Employee is Convicted Whilst Working for the Company? Difficulties can arise when an employee receives a criminal conviction whilst employed. In certain cirucmstances the nature of this conviction can justify an employer in ending the employment relationship, particularly where the nature of the conviction is in some way connected to the employment relationship. For example, in Martin -v- Dunnes Stores Ltd. (UD 571/1988) the EAT considered the situation where an employee broke into another retail store and stole items. The criminal charges were widely reported in the local media. Given the nature of the offence (theft in a retail store) and the nature of the worker’s employment (working in a retail store) it was held that the conviction was sufficiently connected to his employment and thus there was a breach of trust. The dismissal was held to be a fair dismissal. Another relevant example can be found in Barry & French -v- Irish Linen Service (UD 905/1996). In that case the claimants had allegedly been involved in an attempted robbery of a pub during which they used their employers van. Given that the employees had used a company vehicle it was deemed that this criminal behaviour was sufficiently connected to the workplace to justify their dismissal. However, if the criminal conviction/behaviour bears no relevance to the place of employment then any dismissal will most likely be deemed unfair. For example, in Noonan -v- Dunnes Stores (14 July 1989, unreported) CC the Circuit Court considered the dismissal of an employee by the company to be unfair after he had assaulted a Garda Sergeant. The Circuit Court deemed the dismissal to be unfair as the conduct was not connected to the workplace, the employer did not hear of the assault for some time after the event and as such could not evidence that it had any impact on their business, and the assault was not ‘very serious’. If you have any queries in respect of criminal convictions or Garda vetting then please do not hesitate to contact our 24 Hour Advice Service on 01 855 5050.