Patricia Rooney of Tughans’ Employment Department discusses issues arising when a candidate for employment discloses a conviction for murder. Would you want this person representing your organisation or providing services?  Do you have to interview him/her?

When an applicant discloses a conviction for murder, you should be aware that a custodial sentence of more than 2½ years is never spent and consequently, an applicant cannot suggest that this conviction is spent and that it should not be considered.  In any event, if the candidate has voluntarily declared it, it indicates he would rather have it formally dealt with as part of the recruitment exercise.

An employer should of course be aware of its obligation to carry out a fair and transparent recruitment exercise, without taint of any discrimination.  If the organisation obtains further information from the applicant about the circumstances of the murder conviction, and whether it is related to the conflict/Troubles in Northern Ireland, it should be aware that it is illegal to discriminate against that person because of their political opinion.  If they support or approve the use of violence for political end, and it is that political opinion which manifested in violence leading to the murder conviction, the organisation could refuse to employ him due to the expression of that political opinion.  Without further information from the applicant as to the grounds of the murder conviction and whether it is an outworking of their political opinion however, the organisation’s refusal to interview him could jeopardise the fairness of the recruitment exercise and may amount to discrimination.

If this applicant meets the shortlisting criteria and would, without consideration of the disclosed conviction, proceed to interview, I suggest you consider including him in that interview process.  Only if he is the successful candidate when all interviews have been completed, might the organisation then undertake an Access NI check and obtain further information from him as to the nature of the murder conviction.  The employer should then consider whether that conviction is materially relevant to the job he will undertake.

Normally, it is recommended that an employer apply for an Access NI check only when the applicant has been successful in the recruitment exercise.  Also, only after the interview when the process has completed, should the employer consider whether a conflict related conviction is materially relevant to the job in question and incompatible with the post to be filled.  Unless the job responsibilities constitute a regulated activity, a conviction does not automatically exclude the individual from employment.

There is Employers’ Guidance on dealing with conflict related convictions in Northern Ireland and the organisation may wish to access this.  Essentially, the Guidance suggests that a prospective employer should ask whether the conviction disclosed as part of the recruitment exercises is materially relevant to the job that the applicant will be required to carry out if he/she is successful in the recruitment exercise and whether the conviction itself is incompatible with the post.  It could be that the successful applicant will interact with children and it may be that a murder conviction at all, whether conflict related or not, is incompatible with the responsibilities of the successful applicant.  In addition, I suggest an organisation ought to consider whether the duties of the post holder are such that they will constitute a regulated activity in that the employee will have unsupervised activities with children, such as teaching or training, or a supervisory role.  If so, the organisation should carry out an enhanced check under Access NI.

The content of this article was provided by Patricia Rooney who works in our Employment Department and may be contacted on: 028 9055 3300 or patricia.rooney@tughans.com

 

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.