Employers' Disclosure Law: What You Need To Know

The law protects an employee's right to control the disclosure of private information. However, there are certain situations in which an employee must disclose information about themselves to their employer. For example, applicants with unspent criminal convictions must disclose this information to prospective employers if asked about their criminal history. Additionally, employees may need to disclose certain medical conditions to their employer, such as when requesting reasonable accommodations or taking medical leave. In some cases, employers are also allowed to inquire about an employee's medical condition if it is impacting their job performance. Employers who carelessly disclose private information about their employees can be held liable for invasion of privacy.

Criminal convictions

In the UK, the Rehabilitation of Offenders Act 1974 allows most convictions and cautions to be considered spent after a specified period. This period is determined by the sentence or disposal received for a particular offence. Once a caution or conviction is spent, the person is considered rehabilitated, and they are treated as if they had never committed an offence. This means that job seekers with spent convictions have the right to legally withhold this information from prospective employers when applying for most jobs.

However, employers are entitled to ask applicants to disclose details of any convictions that are not yet spent under the terms of the Rehabilitation of Offenders Act. Depending on the job, employers can also request details of spent cautions or convictions under an enhanced criminal record check. If recruiting for positions exempt from the ROA, employers are entitled to ask for details of any unspent cautions or convictions and any adult cautions or spent convictions that are not eligible to be filtered.

If an applicant has received a conviction during their employment, they should refer to their contract to see if there is any clause requiring them to disclose it. Most employers ask questions relating to criminal convictions and may request that employees inform them of any changes to the details provided in their application. Employees are not obligated to disclose criminal convictions unless asked, but withholding this information may be seen as a breach of trust by the employer.

In certain circumstances, a criminal conviction may be relevant to an employee's role, such as working for a government body or in finance and being convicted of a criminal offence involving dishonesty. In such cases, disclosing the conviction proactively can enhance the employee's chances of success, as it demonstrates transparency and allows for addressing any concerns. However, if an employer chooses to dismiss an employee based on a disclosed conviction, the employee can argue unfair dismissal, and the employer must justify the reasons for the dismissal.

Medical conditions

In general, employers are not permitted to ask job applicants about their health or medical conditions before making a job offer. However, there are exceptions to this rule. For instance, if an applicant requires accommodation to complete an online application, attend a job interview, or take an employment test, they may need to disclose their medical condition to receive the necessary adjustments. Additionally, employers can ask applicants for written consent to perform a background check, although they cannot specifically request medical information.

After a job offer has been made, an employer is typically allowed to ask medical questions, as long as they solicit the same information from all applicants entering the same job category. At this stage, an employer may only ask disability-related questions if they are job-related and consistent with business necessity. For example, when an employee requests accommodation or is experiencing performance issues related to a known medical condition.

Once an individual has started working, there are several circumstances in which an employer may be permitted or required to ask for medical information:

• When an employee requests a reasonable accommodation for their condition, the employer is legally entitled to know the nature of the disability to determine if the requested accommodation is reasonable and necessary.
• When an employee asks to take medical leave, such as FMLA leave, disclosure of their medical condition may be necessary to establish eligibility.
• When there is a statute or other regulation requiring disclosure, such as certain jobs that legally require the disclosure of specific conditions to an employer or a governing agency. For example, healthcare workers may need to disclose their HIV-positive status.

If an employee does not disclose a medical condition, they could face disciplinary action or, in some cases, lawful termination of employment. However, employers must be cautious when taking such actions to ensure they are not discriminatory and that they follow fair procedures. Additionally, employers have a responsibility to maintain the confidentiality of employee medical records and are prohibited from unlawfully disclosing this information under laws such as the ADA and HIPAA. If an employer violates an employee's right to privacy by unlawfully disclosing their medical information, the employee may be entitled to seek remediation and compensation for damages.

Genetic information

In the United States, the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from requesting, requiring, or purchasing employees' or applicants' genetic information. "Genetic information" includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or a family member sought or received genetic services, and genetic information of a fetus or embryo carried or held by an individual or family member.

Under GINA, it is illegal for employers to discriminate against employees or applicants based on their genetic information. This includes all aspects of employment, such as hiring, firing, pay, job assignments, promotions, layoffs, training, and fringe benefits. Additionally, it is illegal to harass an employee or applicant because of their genetic information, and employers cannot reassign or take any employment action based on an individual's genetic information, even if it is intended to benefit the employee.

There are limited exceptions to the non-disclosure rule. For example, inadvertent acquisitions of genetic information, such as a manager overhearing someone talking about a family member's illness, do not violate GINA. Genetic information may also be obtained as part of health or genetic services offered by the employer on a voluntary basis, or as part of the certification process for certain types of leave.

Federal and state laws, including HIPAA and GINA, prohibit genetic discrimination in health insurance and employment. However, the laws surrounding privacy and genetic information are complex and ever-evolving, and they are not entirely consistent across different jurisdictions.

Private life

An individual's private life is protected by law, and employers are required to keep certain information about their employees confidential. The biggest category of records that must be kept confidential is medical information. The Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Health Insurance Portability and Accountability Act (HIPAA) all have strict rules about how employers must handle medical information. The general intent of these rules is to protect employee privacy and prevent managers from making discriminatory decisions based on an employee's disability or genetic information. For example, the ADA requires employers to keep information about an employee's medical condition separate from their personnel file and treat it as a confidential medical record. This information can only be disclosed to supervisors and managers regarding accommodations, to first aid and safety personnel if the employee needs emergency treatment, and to government officials investigating compliance with the ADA.

Similarly, an employee's genetic information is also protected from disclosure under the federal Genetic Information Nondiscrimination Act and the Texas Genetic Discrimination Law. Consumer information, including credit reports, credit scores, investigative consumer reports, check-writing history, insurance claims, and residential or tenant history, is also protected by law. The federal Fair and Accurate Credit Transactions Act requires employers to take reasonable measures to protect consumer information from being misappropriated, such as disposing of or destroying sensitive consumer financial information.

In addition to medical and consumer information, other types of private information that employers may have access to include job applications, criminal background checks, credit histories, complaints, and commendations. If an employer carelessly discloses this type of information, the employee may bring a claim for invasion of privacy. For example, state law may prohibit an employer from making job decisions based on an employee's credit or arrest record, and the employer may face legal liability if managers have access to this information and use it to take action against an employee.

Furthermore, employees have a legal right not to disclose certain criminal convictions if they are spent. The Rehabilitation of Offenders Act 1974 and the Police, Crime, Sentencing, and Courts Act 2022 amended the rehabilitation periods after which certain offences become spent and no longer need to be disclosed. However, certain roles and occupations, such as those involving positions of trust or sensitive areas of work, are exempt from the statutory protection afforded to applicants not to disclose spent convictions.

Criminal history

In the context of criminal history, applicants are not obliged to voluntarily disclose any criminal convictions. This means that employers who want to know about any criminal history must ask. If a conviction is spent, an applicant usually has a legal right not to disclose that conviction, even if expressly asked by an employer to declare any criminal past.

However, if asked by a prospective employer about unspent convictions, individuals are required by law to disclose these during the rehabilitation period. The Rehabilitation of Offenders Act 1974 (ROA) has undergone significant amendments, with Section 193 of the Police, Crime, Sentencing and Courts Act 2022 coming into force on 28 October 2023. These changes reduced the amount of time that certain offences are considered unspent. Once this period has lapsed and the conviction has become spent, the individual is no longer mandated to disclose it.

The law aims to balance the rights of offenders to rehabilitate and move on from their past, and the rights of employers to protect their business and brand. The disclosure requirements depend on whether a conviction is unspent or spent. For every conviction, there is a prescribed rehabilitation period, influenced by the offender's age, and the length and type of sentence imposed. During this period, the conviction is deemed unspent. After this period, if the offender does not reoffend, their conviction becomes spent, and they are treated as rehabilitated, as if they had never committed the offence.

Certain roles are exempt from the statutory protection afforded to applicants, not requiring them to disclose spent convictions. This includes positions of trust or sensitive areas of work, such as work with children, health and social care, law enforcement, the legal system, or high-level finance. If an employer is recruiting for an exempt post, they are entitled to ask about any spent convictions, although minor historic convictions may be protected. Additionally, employers can request a standard DBS (Disclosure and Barring Service) check, which will reveal any spent and unspent convictions, cautions, reprimands, and warnings on the police national database.

Frequently asked questions