Successful employment relationships demand a degree of transparency. In essence, that is what the duty of good faith is all about.

But there is some information about ourselves that we prefer to keep private. And there may be some information that you certainly do not want your employer to know – especially if that disclosure may put your employment at risk.

So when does an aspect of your personal life become something that your employer is entitled to know about?

A recent Court of Appeal decision suggests that your duty to disclose information about yourself to your employer may be wider than you think.

A SECURITY GUARD GETS A WARNING

The case before the Court of Appeal concerned a security guard at Otago University. He pled guilty to charges of assault and wilful damage in the District Court, but was later discharged without conviction and granted name suppression.

Nevertheless, a University representative was present in court on the day the security guard’s sentence was being considered… and was taking notes.

The University acted on the information heard in court that day. It disciplined the security guard on the basis that the violent behaviour he had exhibited outside work was relevant to his role to protect people on campus. He was given a final written warning, suggesting that if he displayed any further violent behaviour, he could be dismissed as the University would no longer be able to trust him to carry out his duties appropriately, which may require him to deal with confrontations from time to time.

The security guard thought it was unfair that the University acted on information that had been suppressed by the District Court, and he challenged the University’s approach all the way to the Court of Appeal.

The Court of Appeal sided with the University. It said that not only was the University entitled to act on that information, but that the security guard should have disclosed the charges to his employer in the first place.

They were charges that were directly relevant to whether he could carry out his job responsibly, so the University had a genuine interest in that information. By failing to share it with them, he breached his duty of good faith.

WHAT TO DO WHEN FACING CRIMINAL CHARGES

So what lessons can be drawn from the Court of Appeal’s decision?

If you face criminal charges, you need to carefully assess whether that is information you should disclose to your employer under your duty of good faith.

It may not matter that you have obtained name suppression – the real question is whether your employer has a genuine interest in knowing about the charges.

A genuine interest will arise where the charge or offending raises a fair concern about whether you can be trusted to carry out your job.

For example, fair concerns may arise if:

• you are charged with using a document to commit fraud and you are in the accounting team; or
• you are charged with reckless driving and you are employed as a truck driver.

Bear in mind that the onus will be on you to decide whether you should disclose the information. If you decide not to, you could be disciplined for a breach of good faith.

DO I HAVE TO DISCLOSE OTHER PERSONAL INFORMATION?

The principles in this case could well apply to other information than whether or not you face criminal charges.

The fact that it may be information about something you did outside work may not matter.

The Court of Appeal has indicated that anything you do, outside work or not, must be disclosed to your employer if it is incompatible with the nature of your job or if, for any other reason, it could undermine your employer’s trust in you.

The employer has a legitimate interest in knowing that information, and your duty of good faith requires you to disclose it to them.

As the Court’s statement was made only recently, it remains to be seen how far this principle is taken. But it is fair to say that the average employee is unlikely to appreciate that their duty of good faith has such breadth.

CONCLUSION

The Court of Appeal’s judgment demands that we take the duty of good faith – honesty and transparency in our employment relationships – very seriously.

The upshot is that if you are facing charges that may be relevant to the role you are employed for, you must disclose these charges to your employer.

But the implications may be far wider than just those circumstances when criminal charges are at play. As a general principle, you may have to disclose any personal issue that could impact on your role.

That may seem like an undue intrusion into your personal life, but, as the law curently stands, is part and parcel of being in an employment relationship.