Criminal integrity of the employee and its verification
Today, it is not unusual for employers to place emphasis on the criminal record of their employees. However, this requirement, although at first sight quite rational and understandable, may not always be in line with the law. When is it legitimate to require an employee to have a criminal record and when, on the other hand, must an employer not require an employee to have a criminal record?
What about the Labour Code?
The basis for (non-)verification of an employee's criminal record is set out in Section 316(4) of the Labour Code. Among other things, it provides that the employer may not request information from the employee that is not directly related to the performance of work and the employment relationship, and specifically mentions criminal integrity as an example. However, as is usually the case, there is an exception to this rule, which is that verification of criminal record is allowed if
- there is a substantive reason for doing so, based on the nature of the work to be performed, and if the requirement is reasonable,
- or in cases where this Act or special legislation so provides.
When is it possible to request an extract from a criminal record?
It is clear from the above that it is not possible to require a criminal record statement across the board for all employees. The simplest situation appears to be one where the law directly requires a person to have a clean criminal record, and in many cases it also specifies how that record is to be proved. These professions include, for example, nurses, teachers, judges, police officers or lawyers.
More complicated are cases where the law does not explicitly stipulate the condition of good character. In such cases, it is necessary to examine whether there is a substantive reason for the integrity based on the nature of the work and whether the requirement of integrity is reasonable (both conditions must be met simultaneously). Generally speaking,
that the requirement of integrity for junior positions is more likely to fail to meet the above conditions. On the other hand, even junior positions may in some cases handle large sums of money (e.g. a security guard transporting cash) or very valuable items (e.g. a jewellery shop attendant) and here the requirement of criminal integrity seems quite legitimate.
However, it is always necessary for the employer to examine each individual case and carefully consider whether it is necessary to require the employee or job applicant to prove his or her integrity in relation to the work performed. If the employer were to require proof of integrity without justification, the employer would be in breach of employment law and, under the Employment Act, would be liable to a fine from the Labour Inspectorate of up to several hundred thousand crowns.
Conclusion
Although at first glance, criminal record checks seem straightforward, they are complex issues that always require an individual approach. It is important for employers to follow a greater care to minimise any potential risks.
Last but not least, it is also worth noting that the concept of integrity can be further subdivided (absolute integrity - not committing any criminal offence, or not committing a deliberate criminal offence, or not committing an offence related to employment). While for most professions a conviction for a negligent crime will not be a problem (typically vehicular manslaughter), the commission of an employment-related crime (typically embezzlement) may already exclude an applicant from a large number of professions.