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Ben Jones
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Criminal Record - Employment and entry to USA

Resolved Question:

I've got a question re a family member who is working for a company. At the time of employment they were not asked to declare if they had a criminal conviction. They have been asked to travel to USA on business and feel they will have to declare it now. Have the company got any grounds for dismissal. Also the conviction was received in Australia and it was with another student who were travelling and they got arrested on a night out and the family member got convicted along with the other student and fined of 1) did without reasonable excuse , failed to comply with direction under Part 14 Law enforcement Act 2002 2)Resist officer in execution of duty 3)Resist or hinder police officer in the execution of duty Crimes Act 1990. Basically the were under the influence of alcohol . Would this type of conviction prevent entry to the USA. They received a fine by the court.

Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have they worked there for?


They have worked there over a year.


they joined an initial company that was recruiting graduates and I introduced them and was placed in the company he is now working for in approx Feb 2013. In approx July 2013 they were asked to transfer to the other company as there was an option to joinn permanently.


this was an agreement between the two companies. For neither companies to the best of my knowledge was the family member asked if they had a criminal record


So in total between both companies the family member has been working there in total since Feb 2013


Is that enough information

Ben Jones :

Hi, sorry I was offline this morning when you replied.

First I will deal with their employment position. If they have been continuously employed at their place of work for less than 2 years then their employment rights will unfortunately be somewhat limited. Most importantly, they will not be protected against unfair dismissal. This means that their employer can dismiss them for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because they were trying to assert any of their statutory rights (e.g. requesting maternity/paternity leave, etc.). As the exceptions do not apply here, a dismissal is a potential, and legally available option for the employer.

They would still be entitled to receive their contractual notice period and any outstanding holidays but they would not be able to challenge the dismissal, even considering the circumstances in this particular case.

As to the travel to the USA, as they were arrested they will need to declare this to the US authorities and apply for a visa, but this is not a serious crime and as such I do not foresee them being rejected a visa to travel to the country. They will still need to attend an interview for the visa application and as long as everything goes well, a visa should not be denied, although of course they have the final say as to whether one is issued or not. However, based on the nature of the crime, it is not really something that would likely prevent them from travelling.

Hope this clarifies your position? If you could please let me know that would be great, thank you


Hi Ben


Thank you for the reply , one final question , is it at the discretion of the employer, one of the family members colleagues is employed but the company are aware of the colleagues possesion of class A drug. You mentioned there is no legal challenge but can they dismiss him for having a criminal conviction and my family member cannot challenge that.

Ben Jones :

That is correct unfortunately - the employer does not need to provide a fair reason for the dismissal, in the first 2 years of employment they can dismiss for more or less any reason, as long as it is not discriminatory or for one of the limited exceptions, none of which would apply in this case. It does not mean they will dismiss, but the option does exist if that is the route they want to follow.

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