Chapter 16Employing labourhis ability to do a type of job which he had not done
before.
The Rehabilitation of Offenders Act 1974 is also
relevant here. The provisions of the Act are an attempt
to give effect to the principle that when a person con-
victed of crime has been successfully living it down and
has avoided further crime, his efforts at rehabilitation
should not be prejudiced by the unwarranted disclosure
of the earlier conviction.
The Act therefore prevents any liability arising from
failure by an employee to disclose what is called a spent
conviction to a prospective employer. For example, the
Act removes the need to disclose convictions resulting
in a fine recorded more than five years before the date of
the reference or testimonial.
Sentences of imprisonment for life or of imprison-
ment for a term exceeding 30 months are not capable
of rehabilitation. The rehabilitation period for a prison
sentence exceeding six months but not exceeding 30
months is ten years, and for a term not exceeding six
months it is seven years or, as we have seen, if the sen-
tence was a fine, it is five years.
If an employer does refer to a spent conviction in a
testimonial or reference the employee may sue him for
libelin the case of a written testimonial or reference,
or slanderwhere the testimonial or reference is spoken.
The defence of justification, i.e. that the statement that
there was a conviction is true, will be a defence for the
employer only if he can show that he acted without
malice.
While discussing the 1974 Act it is worth noting that
it makes provision for questions by employers relating
to a person’s previous convictions to be treated as not
applying to spent convictions.
The Act also provides that a spent conviction or any
failure to disclose a spent conviction shall not be a proper
ground for dismissing or excluding a person from any
office, profession, or occupation, or employment, or
for prejudicing him in any way in any occupation or
employment.
However, the Rehabilitation of Offenders Act 1974
(Exceptions) (Amendment) Order 1986 (SI 1986/1249)
allows those who employ persons who will have con-
tact with those under 18 to ask, for example, questions
designed to reveal even spent convictions, particularly
any with a sexual connotation.
Certain employees are excluded from the 1974 Act
and their convictions can be disclosed. Included in the
exceptions are doctors, chartered and certified account-
ants, insurance company managers and building society
officers (see SI 1975/1023 and SI 1986/2268).
2 To the former employee, for libel or slander if things
have been stated in a testimonial or reference which
damages the employee’s reputation. However, the
employer has the defence of qualified privilege, as it is
called, so that he can speak his mind about the employee
and so in order to get damages the employee would have
to prove that the employer made the statement out of
malice, as where there was evidence that the employer
had a history of unreasonable bad treatment of the
employee and knew that what he said or wrote was untrue.
It is also possible, however, for the employee to sue the
employer in negligence and there is then no defence
of qualified privilege available to the employer, and the
defence can be bypassed. The following case gives an
illustration.487
Springv Guardian Assurance plc(1994)Mr Spring failed to get three jobs for which he applied
because of a bad reference given to him by the defendant
employer. It stated that while he had been employed by
the defendants as an insurance sales manager he had
not managed the sales team fairly, and among other
things had kept the best leads (i.e. client contacts) to
himself. The person who prepared the reference on
behalf of the company did so on the basis of internal
memoranda though she was not malicious in any way.
However, the judge found that there was a duty of care
and that the claimant could base his case in negligence.
There should have been a more rigorous check on the
memoranda and it had been negligent not to do this. The
statements made about Mr Spring were not in the view
of the judge always justified and it was no defence to
an action in negligence that the person preparing the
reference may have honestly believed them.
This decision of the High Court was eventually
affirmed by the House of Lords in 1994.Given then that there is a claim in negligence for a
breach of duty by the employer, what is the employer’s
duty of care? It was held in Bartholomewv Hackney
London Borough Council(1999) that the duty imposed
upon the employer is to ensure that the reference is fair,
just and reasonable and that the employer should take
all reasonable care to ensure that there is no misstate-
ment. This duty applies, said the court in Bartholomew,