How should we deal with ex-offenders?

Public debate about whether professional footballer Ched Evans should return to his job as a professional footballer following his release from prison for rape, provides a topical example of a wider problem. Over 9.2 million people were known to the police with a record on the police national computer in 2009/10: around 15% of the UK population. Research by Working Links suggests that three quarters of all employers would not employ anyone with a criminal conviction and that 74% of all newly released prisoners remain jobless. In relation to the purpose of employment in the wider criminal justice system, the CIPD found that

…employment is the single most important factor in reducing reoffending. Of the 144 HR professionals who have knowingly employed ex­offenders, only 8 have reported cases of reoffending. In addition, two­ thirds of HR managers state that employing ex­offenders has been a ‘positive’ experience.

Whilst many espouse the view that once locked up, the key should be thrown away, in 99% of cases this will simply not happen. This blog is not specifically about whether Ched Evans should be allowed to return to the game, or indeed on the necessity or desirability of those who have been convicted of very serious offences being back in the public eye,  there is enough comment elsewhere on this. What this is intended to address is how we deal with ex-offenders as a society. There is no substitute for Working Links’s research, but some of the most interesting parts of the paper deal with the reasons for employers either being reluctant, or refusing outright to employ ex-offenders.

In most cases, if not the lowest down on the list, a direct bad experience with ex-offenders was usually well towards the bottom. Of those who had knowingly employed an ex-offender, only 7% indicated a consistently “worse than expected” performance. Generally however, most employers expressed the view that they would be more likely to employ ex-offenders if there was more support and information for employers during the recruitment process and safeguarding thereafter.

What is worth taking from the majority of employers’ experience of employing former convicts however, is that the majority of the time, negative perceptions are not backed up by actual experience. The low employment rate amongst former offenders is undoubtedly a direct costs to the public purse in respect of jobseeker’s allowance, but also in respect of increased indirect costs by a higher level of reoffending. Ex-offenders who had a job to go to on their release from prison had  45%reoffending rate compared to a 58% overall: the lowest rate of reoffending of all of the groups for which employment status on release was recorded.

It is undoubtable that increased employment for ex-offenders is desirable, both from a societal self-interest point of view, as well as a more altruistic one. An interesting proposal has been the implementation of an “Offender Discrimination Act”, presumably along the same lines as the Equality Act, although the political will for this is never likely to be sufficiently strong to see any progress through Parliament.

There is limited protection in the form of section 4 (3) (b) Rehabilitation of Offenders Act 1974 which provides:

a conviction which has become spent or any circumstances ancillary thereto, or any failure to disclose a spent conviction or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment…

This provides very little comfort to those whose convictions are not spent, or those without qualifying service (caselaw on section 4(3) found it was an automatically unfair reason for dismissal but those employees had qualifying service and there have been no cases yet on the extent of any exception to section 108 (1) Employment Rights Act 1996). Bearing in mind the very real problems that unemployed offenders cause, perhaps this is something that needs addressing as part of a more in depth consideration of the purpose of the criminal justice system. I suspect there are doubts that vast numbers of unemployed ex-offenders are a good thing.


UPDATE: Jamie Oliver has also hit the headlines since I wrote this post. His restaurant Fifteen, which donates all profit to charity, has taken on an apprentice who was previously sentenced to 4 years in a young offenders institution for rape of a child under 13. A representative of the restaurant has been quoted as saying.

…we decided that as he had served his sentence he should be allowed a place on the programme.  He has so far been an excellent student.

Qualifying Armed Service

There was much (well some) fanfare following Redfearn v UK [2012] ECHR 1878 when the qualifying period for unfair dismissal was removed where the sole or principal reason for dismissal was due to a person’s political affiliation. It didn’t become “automatically unfair” so could still be an “ordinary” unfair dismissal on normal principles, although presumably it would have to be argued as some other substantial reason; the sole or principal reason not being one of the usual list of conduct, capability etc.


Whilst not entirely overlooked, a similar provision is likely to be quietly introduced in respect of members of the Reserve Forces – something that was envisaged by craighrb on my last blog on the subject.


Section 48 of the Defence Reform Act 2014 introduces an identical right in respect of dismissals where the sole or principal reason for the dismissal of an employee:

is, or is connected with, the employee’s membership of a reserve force…

 The provision is not yet in force. The only commencement order currently made does not apply to the new right. There has been discussion about how much further the employment rights of reservists could be extended. In the second reading debate, the then Shadow Secretary of State for Defence raised the prospect of what would appear a right not to be subjected to detriments on the same grounds. There was a proposal in committee to amend section 39 of the Equality Act 2010 so that discrimination in employment on the basis of membership of the reserve forces would become unlawful. That proposal. as well as a proposal to give the right to time off for training, were both defeated; the latter both in the Commons and in the Lords.


What could have been a wide ranging change has remained quite narrow. It’s also of questionable value bearing in mind the right to reinstatement contained in the Reserve Forces (Safeguard of Employment) Act 1985. In practice, any member of the reserves is going to be much better off getting what is (in most cases) going to be a guaranteed return to a job. Bearing in mind that on average fewer than 10 employees are reinstated each year, and bearing in mind that there are no fees to start a Reinstatement Committee case, the new change to the qualifying period seems to be very much the poorer relation.

Whatwhyhowwho? RBS Mentor

In a segment shamelessly stolen borrowed from the ill-fated BBC Four programme The Late Edition I look at RBS Mentor, their advice on zero hours contracts and why they’re in the news.

What’s the deal with RBS Mentor and Zero Hours Contracts?

RBS Mentor are part of the RBS Group and offer legal advice to businesses based on an annual payment calculated on the size of the business. The RBS Group has the UK Government as it major shareholder following a bail out of the bank in the late 2000s. The Independent reported that they are helping “hundreds” of these businesses to draft zero hours contracts and describes the story as a “storm”.


Why are Zero Hours Contracts  controversial?

Some people are concerned that zero hours contracts can be used as a tool by unscrupulous employers to keep a low-cost workforce with limited employment rights and on low pay. The Department for Business, Innovation and Skills were concerned enough about this to launch a consultation to see if there are changes that should be made to the law regulating them; in effect this is currently none.

How come RBS Mentor advising on this is news?

In short, the concern is that because RBS is owed by the government it should not be involved in advising on contracts which are seen as driving down wages and increasing welfare spending according to some. It is debatable whether or not this is actually the effect as there is very little evidence. There is also some suggestion in the article that RBS Mentor is foisting the contracts on businesses. There is no evidence at all presented in the article to support this however.

Who should be concerned about this?

In short, no one. This is (at least in my view) a complete non story. In essence the headline to the article could be written as “Lawyers give advice to their clients who have asked for it and paid for it” or “There might be some illicit behaviour going on but we really don’t have any evidence beyond one case and even then we’re not really sure what happened”.

A lot of the concern about this centres on the fact that in some way a publicly owned company should not do something that people disapprove of. To put this the opposite way round, assume that the much maligned Public Defender Service was advising someone accused of a crime. The defendant did it and knows that he did, but his representative sees a problem with the identification evidence which could and eventually does secure an acquittal. Very few people would be happy that a “guilty” person had got off, but even fewer when confronted with the same situation if they were in it would suggest that the lawyer should somehow hold back advice that they know could benefit their client.

Leaving aside professional duties to act in a client’s best interests, something very dangerous happens when people’s ability to get the best advice available to them is curtailed based on whether other people approve of it or not. I like to avoid sounding like Richard Littlejohn where possible, but if this right to obtain legal advice is curtailed, it’s not a long step to other more important areas being closed off.

So my take on this is, yes disagree with the concept of zero hours contracts, but so long as they’re legal let’s not demonise people giving legitimate advice on them; at least until there’s some proof that the advice is being given in bad faith.

Constructive Knowledge and Rubber Stamps

The court of appeal yesterday handed down judgment in Gallop v Newport City Council regarding the question of an employer’s constructive knowledge of disability. The Claimant was supported by the EHRC who were understandably pleased with the outcome. Credit should also go to the Bar Pro Bono Unit who supported in the EAT and in getting permission to appeal.

Mr Gallop was a technical officer  working for the local council. He had exhibited some signs of depression such as, stress, lack of sleep and appetite, tearfulness and difficulty in concentrating. Over the course of about 3 years, these symptoms continued and absences due to them occurred, he was referred to Occupational Health. The ET and EAT had decided that when the council’s occupational health providers had stated that Mr Gallop was not disabled in the course of three reports, the employer was entitled to rely on that to conclusively demonstrate that it did not have knowledge of the employee’s disability when it later turned out that he actually met the definition. The problem with the occupational health reports were that as they were described by Rimer LJ:

Their opinions amounted to no more than assertions of their view that the DDA did not apply to Mr Gallop, or that he was not ‘covered’ by it or words to that effect. No supporting reasoning was provided. As the opinions were those of doctors, not lawyers, one might expect them to have been focussed on whether, from the medical perspective, the three elements of section 1 [i.e. a mental or physical impairment which had a substantial adverse effect on his ability to carry out normal day-to-day activities] were or were not satisfied. Since, however, OH made no reference to such elements, neither Newport nor the ET could have had any idea whether OH considered (i) that Mr Gallop had no relevant physical or mental impairment at all; or (ii) that he did, but its adverse effect on his ability to carry out normal day-to-day duties was neither substantial nor long-term, or (iii) that he did, but it had no effect on his ability to carry out such duties. OH’s opinion was, with respect, worthless. For reasons indicated, Newport had to form its own judgment on whether Mr Gallop was or was not a disabled person; and OH’s views on that topic were of no assistance to them.

Had the EAT been right, the problems that would have been caused by the judgment fell into sharp relief in this case. An employer, deliberately or innocently could have provided inadequate information to a doctor to assess disability in the sense in the Equality Act (or DDA in this case) and then relied upon an inaccurate report to negative its knowledge. Both sides (and the court) in Gallop agreed that for constructive knowledge, it was knowledge of the facts which led to a person being disabled, not whether as a matter of law those facts amounted to a disability which was relevant. That being the case it was difficult to see how a bald statement that a person is not disabled got past facts which the employer already knew about from which they could reasonably known a person was disabled.

In giving permission to appeal, Elias LJ said

…it might be thought surprising if an employer could say we have received advice that an employee is not disabled and rely on that.   I am very curious to see what the outcome is!

It might not have come as much of a surprise therefore that Rimer LJ giving the only reasoned judgment concluded that:

…the employer must not forget that it is still he, the employer, who has to make the factual judgment as to whether the employee is or is not disabled: he cannot simply rubber stamp the adviser’s opinion that he is not.

Saving Private’s Jobs

Back when I was working at FRU, one of the potential volunteers asked me about whether FRU did Reserve Forces cases. I kind of muddled through because unfortunately at the time, I didn’t really know about them. For those few occasions when you’ve felt that an employee’s been treated so badly it ought to be criminal, you might have Parliament on your side. Unusually dismissing a reservist because he has been or might be called up is a criminal offence.

Reservists generally have the same employment rights as any other employee, and the THE has an excellent summary of some of the rights and obligations for employers of reservists. The Reserve Forces (Safeguard of Employment) Act 1985 is considered in that summary, but the act gives them some more and is almost certainly one of the least used pieces of employment protection legislation. In a recent Freedom of Information request, the MoJ confirmed that in the financial years from 2008-09 to 2012-13, there were 12 applications from reservists for reinstatement or compensation under the act and only 5 hearings were held.

The 1985 Act creates reinstatement committees and sets up statutory appeals from these committees to an umpire, apparently on law and fact. In practise the umpire will be the president of the EAT ex officio. Reinstatement committees can order employers to reinstate army restate reservists and/or pay compensation when the right to reinstatement conferred by the act has not been complied with. Failing to comply with an order of the reinstatement committee is also a criminal offence.

In summary, the rights conferred are:

  • The right to at least 26 weeks reinstatement to an occupation not less favourable to the reservist on terms not less favourable than they were originally employed on;
  • If for any reason it is not (or ceases to be) “reasonable and practicable” to continue a reservist’s employment, they are entitled to the “most favourable occupation” on “the most favourable terms and conditions” which are reasonable and practicable. In effect if there is other work they can do, they should be allowed to do it;

An employer can defeat these rights if more than 6 months pass from the end of a call up before they present themselves for work again. It can also be done if the reservist refuses to take up the job without reasonable cause, or if the reservist fails to notify the employer what they rely on as reasonable cause in writing (s1 (4)). There’s also some unusual limitation periods to bring claims. In practice most claims are likely to need to be brought within 13 weeks of an application (or renewal of an application) to be reinstated, although the somewhat different wording to most employment statutes causes some confusion if it is 13 weeks or the usual 13 weeks less one day.

There’s very little case law on the act. Since it came into force in 1985, I have been able to find only two appeals to Umpires from the reinstatement committees. Ironically, in both Slaven v Thermo Engineers Ltd UKEAT/0568/91  and James v Meterological Office UKEAT/1350/00 the president of the EAT thought the case before them was the first one brought to the umpire. James only really helps with the somewhat onerous requirement to renew applications to be reinstated in writing every 13 weeks in order to have the right to complain to the reinstatement committee. This leaves only a single case on the substantive law in Slaven which is somewhat limited in scope to not offering alternatives after a redundancy, although certainly helpful in setting out burdens of proof for the different stages in cases.

Presumably, an employer could show that it would be not reasonable and practicable to take a reservist back if they were dismissed for gross misconduct, it is as yet apparently untested whether the reinstatement committee would require actual proof or adopt the “honest and reasonable belief” test from unfair dismissal. My gut feeling tends towards the latter as it probably isn’t reasonable and practicable to take back an employee who the employer has justifiably lost all trust and confidence in.

It would require an employer with a somewhat unhealthy appetite for litigation to take a chance on any of the other traditional reasons for dismissal though given the lack of case law, especially with the priority given to reservists for other jobs even where a dismissal was not for redundancy. The phrase “reasonable and practicable” has an attractive sound to employment professionals used to dealing with ET claims out of time, but the “and” in the act as well as the judgment in Slaven suggests a disjunctive tests with an employer needing to get over both hurdles to win rather than a composite question of “reasonable practicability”.

You might not come across many reserve forces employees in your time advising clients, but if you do, this stuff is worth knowing. The additional protections available to them, along with the more severe penalties for employers who get it wrong in some situations are probably likely to help with settlements for claimant lawyers. For respondent advice, the lack of case law and there being no power to award costs is probably likely to make any reinstatement committee defence something of a nightmare, but hopefully forearmed is forewarned.