Weekly dilemma: Disclosing criminal charges

An employee has returned to work after appearing in court, so we assume he was found not guilty. He has not spoken to us about the situation, and the only reason we know is because the police came to ask for him at our premises, and through shop-floor rumours. What obligation is there on the individual to inform us, and what does he have to tell us?

There is no statutory obligation on an employee to disclose details of any criminal charges against them or details of any court appearances. However, employers and staff owe each other various implied duties, including the reciprocal duty of mutual trust and confidence, and the duty of the employee to act in good faith.

The nature of the actual offence is an important issue for consideration. If the employee has committed a particularly serious offence, or has been taking time off work to attend court, then it might be reasonable to expect that they would have disclosed this fact to you in advance. The failure to disclose may be considered to be a breach of the implied duties outlined above. Based on the facts, it seems the employee was found not guilty and, as such, they may not be under any obligation to disclose information to you in these circumstances.

Had the employee been convicted, then there may be a duty to disclose that to you, especially if the conviction is such that it would impact on their present or future ability to carry out their duties. Certain occupations also require staff to disclose any criminal records, including spent and unspent convictions, police cautions and reprimands. A failure to disclose in those circumstances could lead to dismissal.

Although the facts state that it is assumed the employee was found not guilty, there is still a possibility that they could be subject to disciplinary action by you.

Regardless of whether the employee was charged with a criminal offence, if it can be established that the offence constitutes misconduct in the course of their employment, then further action by you may be inevitable.

By Sinead Donnelly, solicitor, DWF Solicitors

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Each week we ask the experts to answer your legal dilemmas. If you have a legal question or dilemma, e-mail dawn.spalding@rbi.co.uk


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