Collateral damage: unfair dismissal as an invisible punishment for employees' criminal records

Employment law maintains that employees have a right to a personal life, and that an employee’s behaviour outside of work should not have ramifications for them at work, unless the behaviour is related to their employment. However, the conduct of employees outside work is increasingly the subject of employer scrutiny, and this extends to employees’ criminal records. Existing research concerning the impact of criminal records on employment focuses on criminal record discrimination in relation to recruitment, and has not explored the role of unfair dismissal laws in protecting current employees against dismissal for a criminal record. This article argues that unfair dismissal decisions concerning employees’ criminal records should adopt a framework that is centred on preventing ‘collateral consequences’; invisible punishments beyond those already imposed by the criminal justice system. This framework requires a relevant connection between the criminal record and an employee’s employment, based on the inherent requirements of the employee’s job. Furthermore, tribunals and courts should be required to explicitly articulate this connection, rather than simply assuming that one exists.