Common Law Disclosure

Are the police allowed to inform my employer that I am subject to a police investigation?

Yes, the police have a common law duty to disclose sensitive information to an employer but only in certain circumstances where it is proportionate and relevant to do so.  This is most likely to occur if you have a job that involves working with vulnerable people/you are in a position of trust e.g. a nurse/doctor or school teacher and the police believe there is a risk to the people whom you come into contact with at your place of work. Common law disclosure is most likely to occur in cases involving allegations of a sexual nature e.g rape, sexual assault, indecent images. Disclosure to your employer will be made even though the allegation has no connection to your employment and even though you have not been charged or found guilty of the alleged offence. The situation is usually treated with some urgency. So it is highly likely that the police will seek to use their powers to inform your employer soon after your arrest/interview if you fall within the criteria. The disclosure process will be triggered following your arrest; or voluntary interview (or a recordable offence) but, it could occur later, following the charge (for a recordable offence).

Why do the police do this?

Under the Common Law Police Disclosure (CLPD) the police possess a common law power to share personal sensitive information with third parties, but this should be reserved for situations where it is believed that there is a pressing need to safeguard or protect from harm, of an individual, a group of individuals or society at large. This creates an exception to the general presumption that the police should maintain the confidentiality of personal information. Disclosure must also be relevant and proportionate. The police use this power to enable a third party, such as an employer and/or regulatory body, to consider risk management measures

What type of employment would usually attract common law disclosure?

Common law disclosure is often made in cases where an individual’s employment means they come into contact with people who could be deemed by the police to be at risk of similar alleged offending and there exists a position of trust and/or a duty of care to other people including vulnerable people. For example, if a person is employed as a doctor and has been arrested for rape or sexual assault; or a teacher is arrested for Making Indecent Images or Inciting Sexual Activity with a Child, is likely that the police will notify the employer and/or the regulatory body, such as the General Medical Council or Board of Education. There is only one exception to the police application of relevance and proportionality and that relates to the arrest of warranted armed personnel in respect of whom there is a presumption to disclose all arrests to the Services Police Crime Bureau.

What considerations should the police make?

The scope to use the common law disclosure power is narrow and police are expected to use their professional judgment when deciding whether to make common law-based disclosure.

1. There must be a “pressing need” and this need must be “relevant and proportionate” and it must create a “significant risk.”

Chief Officers must authorise (or they may delegate the decision-making to the investigation officer) any disclosure of relevant information that has become apparent during the investigation (or interview) for a recordable offence and be satisfied that a ‘significant risk’ is identified with an urgent pressing social need to address.

2. The decision to disclose police information must be balanced with the rights and interests of the individual who is the subject of the disclosure, against those of the public in general or any specific members of the public. Consideration must be given to the private life of the individual concerned taking into account any adverse impact disclosure may have on the prevention or detection of crime.

3. Also, any decision to disclose sensitive personal information should have regard to Data Protection Act 1998, the Human Rights Act 1998, and the Rehabilitation of Offenders Act 1974. When making the decision to disclose and whether there is a ‘pressing social need’ the Chief Officer must be guided by the “Quality Assurance Framework” in determining what, if any, information will be disclosed (following the ruling established by the UK Supreme Court in R (on the application of L) (FC) (Appellant) v Commissioner of the Police of the Metropolis (2009).

What cannot be disclosed?

The CPLD provisions do not provide for the proactive disclosure of criminal convictions. This is because employers and regulators can be made aware of convictions via the statutory disclosure route provided by Part V of the Police Act 1997 and the use of the DBS Update Service.

Can I make representations against disclosure?

Yes, but only if the police invite representations where they consider it practicable to do so. The Police Act 1997 has highlighted the importance of seeking the individual’s representations regarding any proposed disclosure prior to it being made. Due to the need to disclose being considered ‘urgent,’ any delay would thwart the process. This is why the police will only invite representations where practicable.

Legislation

Previously, powers of disclosure were provided by the Home Office Circular 06/2006 (the NOS) which was withdrawn. Currently, under the authority of the Police Act 1997, and the Safeguarding Vulnerable Groups Act 2006, the work of the Disclosure and Barring Service (DBS) is central to the safeguarding environment and employment. The CLPD works alongside but is separate from DBS. CLPD provisions extend to police forces in England and Wales (Northern Ireland has voluntarily adopted the provisions and separate arrangements exist in Scotland).

What will my employer do?

It is a matter for your employer to decide. They may decide to do nothing and allow you to continue working as normal. However, depending on the nature of the allegation, they could possibly restrict your duties or suspend you. You should check the terms of your contract of employment or company policy concerning police investigations and/or speak to your Manager, Human Resources Department or Union Representative for advice. You could also seek advice from an Employment Lawyer. Ultimately, it will be a matter for your employer to decide whether they are able to manage any perceived risk.

How can Olliers help?

Olliers could make representations to the police against the disclosure of sensitive information on the grounds that it is not proportionate or relevant. If you are suspended from your employment and have to attend a Tribunal, Olliers has experienced lawyers who will be able to represent you with regulatory proceedings, including General Medical Council hearings, with a view to helping you continue your employment and/or ensuring that any conditions imposed are fair. Contact a member of our team if you would like more advice on common law disclosure of sensitive information.