A suspect (employee)🕵️‍♂️

An employee who is suspected of a serious criminal offence is not always obliged by law to report this to their employer. However, sometimes the facts are so serious that a good employee can be expected to do so on their own initiative. This is certainly the case if the employer has already made it clear on several occasions that such information is important to them.

This has been confirmed once again by a recent ruling, in which an employer received an anonymous tip that an employee had committed sexual abuse against minors. It later transpired that criminal proceedings had indeed been brought against him. The employee was ultimately convicted of sexual abuse against minors, committed during a previous position as a care worker for mentally disabled people at another care institution. The criminal court also imposed a three-year professional ban on him. At his new employer, he was again working as a care worker for vulnerable clients. Nevertheless, the employee claimed that he was not required to report this information. His employer then dismissed him with immediate effect.

The court ruled that the employee had not acted as a good employee by keeping this information to himself and that he could be seriously blamed for this. The summary dismissal was upheld.

Advice to employers: ensure that your employment contract or staff handbook includes a provision requiring employees to report, among other things, any ongoing criminal proceedings (with a potential impact on their work). This will ensure that employees are obliged to report such matters, regardless of whether they are serious enough to warrant summary dismissal.

An interesting detail from the ruling: although the employee could be dismissed with immediate effect, the employer was required to provide a positive reference, on pain of a penalty payment. The employee had requested this, and the employer had not contested this during the hearing. Well... what do you write in that reference?

‘Mr X was employed by us until [date]. He was very determined and demonstrated a strong sense of... confidentiality.’?

Do you have any questions about the wording of provisions in an employment contract or staff regulations? Please contact Dennis Oud, Elke Hofman, Tim van Riel or Tessa Sipkema.

You can read the ruling here.