Ongoing investigations or pending prosecutions – should you disclose to an employer?

Do you have any convictions or conditional cautions which are currently unspent under the Rehabilitation of Offenders Act 1974, any criminal charges pending or any ongoing police investigations?” [Example taken from a national retailers online application form]

The Rehabilitation of Offenders Act and the filtering rules which came into effect in 2013 (updated in November 2020), makes it clear as to what cautions and convictions you legally need to disclose when applying for a job. There’s also information available on the consequences of not disclosing if you are asked to.

But what if you’re subject to an ongoing investigation or you’ve been charged but not yet convicted. How would you answer the above question? Would you disclose? Do you think that legally you are required to disclose?

We know that for the year 2019/20 24% of cases that were referred to the Crown Prosecution Service (CPS) didn’t result in a prosecution with the majority being dropped and no further action taken. Therefore, disclosing to an employer that you are under investigation or have a pending prosecution means you could run the risk of your application being taken no further, even though you may never be convicted of anything.

It’s important to note that there is no legal requirement for you to disclose ongoing investigations or pending prosecutions and in our opinion there are very few circumstances where it would be advisable to disclose.

Employers that receive high numbers of applications for jobs they advertise will often be looking for ways to weed out ‘unsuitable candidates’ and even though they know nothing about you, the disclosure of a possible conviction is likely to be viewed as good a reason as any to ‘bin’ your application.

Even if you’re not ‘weeded out’ employers still like some degree of certainty around criminal records. So, telling an HR manager that you received a 12-month community order for ABH allows them to carry out a full assessment and make an informed decision as to the level of risk you pose. Without a clear outcome, employers will often find it difficult to carry out a fair assessment and may see you as too much of a risk just because of the uncertainty.

However, there are some occasions when despite having no legal obligation to disclose, if you are offered a position, it may be the best option for you. If you are applying for a job which involves working in regulated activity or requires an enhanced Disclosure and Barring Service (DBS) check then the police could choose to disclose the ongoing investigation or pending conviction under police intelligence (sometimes referred to as ‘additional information’) especially if it relates to a safeguarding issue. Having the opportunity to explain the circumstances around the investigation prior to an employer reading something written by the police will allow an employer to have a far more rounded version of events.

If you are sure that the investigation or pending prosecution will lead to a conviction but it won’t stop you from doing the job you’re applying for (i.e. you’re not going to receive a prison sentence) then you might think it’s worth being upfront and honest from the outset. Many employers ask employees to disclose any cautions/convictions they receive during the course of their employment and the fact you didn’t disclose the ongoing investigation/pending prosecution at application stage may be seen as being dishonest and/or a breach of trust.

Is the same true if you are already in a job?

Many employment contracts will state that individuals should disclose any caution/conviction received during the course of their employment but it’s less clear whether employers expect individuals to disclose ongoing investigations or pending prosecutions.

In the case of KH v The Commissioners for Her Majesty’s Revenue and Customs (HMRC) [2020] KH was arrested by the police for four offences, including a sexual offence. She disclosed to her employer the details of one of the offences and was immediately suspended on full pay pending disciplinary proceedings for possible gross misconduct.

One of the claims made by KH was that HMRC’s contractual requirement to disclose information about an arrest was in breach of GDPR. The Court dismissed the claim stating that the processing of arrest information met the requirement of:

  • Article 6 – it was necessary for the purposes of the contract of employment.
  • Article 10 – processing was necessary for the purpose of HMRC exercising rights conferred on it by law (i.e. KH’s contract of employment) in connection with her employment by HMRC and HMRC had an appropriate policy document in place.

In this case, HMRC were able to rely on the fact that they had well documented policies, processes and privacy notices in place. What is less clear is whether an individual could be suspended or dismissed for not disclosing an arrest if there were no contractual requirement to do so.

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Debbie Sadler