Disclosing information to your employer
In this guide employment solicitor Nick Webster and regulatory solicitor Emma Walker discuss issues that can arise regarding disclosing information to your employer or potential employer.
Posted on 22 June 2022
A situation may arise outside of work which may impact on your work or give you cause to pause to think about whether you should tell your employer about what happened. This could include criminal or regulatory proceedings or sanctions. The same could apply when applying for a job, as you may not know if you need to disclose information about your past if your employer does not specifically ask you for it. Is it better to stay quiet or be open? It is a difficult decision and will often depend on the specific issue. The following is some general guidance which can apply to these types of situations.
This guide is not a substitute for obtaining legal advice on your situation and we strongly recommend you seek specific and specialist advice if you need guidance about disclosing information to your current or potential employer.
When must I disclose information to my employer or potential employer?
i. If your current or potential employer asks a question related to this information, then you should strongly consider providing it. If you do not share this information when asked and your employer or potential employer later discovers this, then you could face disciplinary action for misconduct and/or a breach of the implied term of trust and confidence. These processes could result in your dismissal or withdrawal of a job offer. A dismissal for gross misconduct could damage your future career prospects.
ii. If you work in a regulated profession, such as lawyers, medical or financial professionals, a failure to disclose information about your previous conduct could impact on your ability to continue to practice in your regulated profession. For example, solicitors and others regulated by the Solicitors Regulation Authority (SRA) are required to notify the regulator promptly if they are subject to any charge, conviction or caution, subject to the Rehabilitation of Offenders Act 1974. A failure to do so can be regarded by the SRA as evidence of deliberate dishonesty, which, if proved, would result in the induvial being struck off the roll of solicitors, in all but exceptional circumstances. As a regulated professional, what you need to report to your regulator will depend on what has happened and the regulatory regime you are subject to. If you are not sure whether you need to report something to your regulator, you should consider whether to get advice from a regulatory and disciplinary specialist.
iii. Whether or not you fall into (i) and (ii), you should nonetheless seriously consider disclosing information to your employer or prospective employer where your conduct is relevant to the work you do (or will do) or the services your employer provides. A failure to do so could result in disciplinary action if your employer later discovers this and considers it ought to have been made aware of this information.
What if the actions I took are still under investigation?
Even if you dispute the allegation(s) made about you or the investigation is still underway or subject to an appeal, non-disclosure of this information when directly asked by your employer, or where it is relevant to the duties you will provide or the service your employer provides, could still result in you being subjected to disciplinary action (including dismissal) or a job offer being withdrawn.
What if the actions I took were caused by a personal characteristic?
If the action(s) you took were caused by a personal characteristic, such as a disabling health condition, and your employer disciplines you or you are not offered a job because of the fact you are disabled or because the conduct was caused by your disability, then this may amount to discrimination.
What are the potential consequences of withholding information from my employer?
As mentioned above, if you do not disclose information when directly asked, this could result in disciplinary proceedings for misconduct which may culminate in your dismissal. If you are not asked directly and do not volunteer the information, and your employer later discovers this, then your employer could assert that they no longer have trust or confidence in you and they could discipline you for failing to disclose this information (including imposing a dismissal as a sanction). If the actions you took are relevant to the work you do or the service your employer provides, then they are more likely to take this route and be able to justify their actions.
What can I do if I lose my job or I am not offered a job?
This will depend upon various factors, including why the current or potential employer took this decision. If the decision to dismiss you was unfair, then you may be able to pursue a claim for unfair dismissal in the employment tribunal if you have two years’ continuous service and are an employee. If the decision to dismiss you was discriminatory, then you would not need two years’ continuous service or to be an employee in order to pursue an employment tribunal claim for the manner of your dismissal.
If you are not offered a job, then your only course of action would be if you can show that the decision was discriminatory – you would have no remedy if the employer decided to not offer you a role simply because you had been or were under criminal or regulatory investigation. If an offer is withdrawn after it has been accepted, then you may be able to seek damages for the value of your notice period (other benefits and/or compensation may be available depending on the terms of your contract).
Overall, it can be a difficult judgement call about how much information to share with your employer or a potential employer and if you are unsure what to do, then it would be best to obtain advice before proceeding. The outcome of the process may turn on how and when you provide the information to your current or potential employer; indeed, on occasion it may be justifiable to not provide the information and doing so could expose you to unnecessary risk. If you are disciplined, or not offered, a job or had an offer withdrawn, then we would recommend you obtain prompt legal advice as strict time limits apply to employment tribunal claims.