Does HR have a right to know when staff face criminal charges?

A recent Supreme Court decision offers clarity to employers.

Does HR have a right to know when staff face criminal charges?

If an employee is charged with a crime while working for your company, do you have a right to know about it? While the question may leave many employers uncertain, a recent decision from the Supreme Court can offer some clarity.

The case involves a security guard – referred to only as ASG – who was working for the University of Otago’s security team. Then man pleaded guilty to one charge of wilful damage and another of assault but was discharged without conviction because it was deemed ‘extremely likely” he would lose his job otherwise.

While the court made an order for the suppression of ASG’s name and all details of his offending, the university’s deputy proctor had been tipped off about the hearing and was sitting in the public gallery when the man was sentenced.

The organization then decided to launch an employment investigation and suspended ASG with pay – however, the Tertiary Education Union opposed the measure and claimed the deputy proctor and university were violating the court’s suppression order.

Despite backlash from union figures, the university proceeded with the investigation and decided that a final written warning was appropriate. ASG then raised two personal grievances for unjustified disadvantage in relation to his suspension and the final written warning.

The Employment Court was then asked to consider whether the deputy proctor had violated the suppression order and if the university was therefore unable to act on that information.

The court held that while suppression orders do prohibit "word of mouth" communications, this does not include sharing details with those who have a genuine need to know the information.

The Court of Appeal later agreed with that decision and earlier this month, the Supreme Court upheld the ruling once more.

“The Supreme Court's decision confirms that if criminal charges against an employee are relevant to their employment, employers may have the right to know and communicate details that are otherwise subject to non-publication orders,” said Phillipa Muir, a partner at Simpson Grierson.

“In this case, given the nature of the charges and ASG's role, the university had a genuine interest in knowing that ASG had pleaded guilty to an offence of violence against his spouse.”

Muir, who heads Simpson Grierson’s employment law group, says this may be the case where an employee in a position of trust pleads guilty to a charge involving dishonesty.

“Further, where criminal charges exist that are relevant to an employee's role, an employee could be in breach of their good faith obligation by failing to disclose these to their employer in a timely way,” she added.

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