An employer’s right to know about criminal charges

The extent of an employer’s right to know information about an employee has been clarified by the Supreme Court recently, where it held that employers will often have the right to know about an employee’s criminal charges, even if there is a suppression order in place.

The Supreme Court in ASG v Harlene Hayne, Vice Chancellor of the University of Otago, considered the case of “ASG”, a Campus Watch Security Guard employed to work at the University of Otago. While employed, XASG faced charges of wilful damage and assaulting his wife. He pleaded guilty, but was later discharged by the Judge without conviction on both charges because he was “extremely likely” to lose his job otherwise. An order was made to prohibit the publication of his name or identification.

ASG had not made his employer aware of the charges, however the University’s Deputy Proctor had been tipped off that ASG was being sentenced, and was in Court during the sentencing hearing. In turn, he informed the Vice Chancellor of the University. The University investigated, during which time, ASG was suspended. The University issued ASG with a final written warning in relation to the charges. ASG raised a personal grievance, claiming he had been unjustifiably disadvantaged by both the suspension and the warning.

After significant litigation, the Supreme Court held that when an employee’s criminal charges are relevant to his or her employment, the employer has a right to know and act on information that may otherwise be subject to non-publication orders. ASG’s role as a Security Guard at the University gave rise to a legitimate interest in his employer knowing that he had committed a violent offence.

The Supreme Court confirmed the earlier view of the Employment Court and Court of Appeal that in relation to the suppression order, ”publication” means distributing information to the public at large, not communication to those “with a genuine interest” in the information. ASG’s unjustified disadvantage claim failed.

The Supreme Court’s judgment clarifies that publication for the purpose of a suppression order does not include telling someone with a genuine interest, on a one on one basis. This will generally include an employer, where an offence may relate to the duties performed by the employee. A failure to disclose such charges will likely be in breach of an employee’s good faith obligation.

Article by Andrea Twaddle, Director and Employment Law Specialist, DTI Lawyers