Criminal convictions and illnesses: What an employer needs to know


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In the event of circumstances that have a negative impact on the employment relationship, the employee must usually inform the employer independently. Because it is subject to the so-called duty to disclose.

However, there are strict limitations. In the event of illness, for example, an employee should only inform his boss of the nature of the illness if it is contagious, for example.

If a future employer asks about pregnancy or a chronic illness in an application, for example, not only do you have to answer that question, you can even lie.

Lack of legal knowledge can cost a lot of hassle, time and money. Would you rather relax your nerves and your wallet? Then our “Know Your Rights” column is just the thing for you. Here, lawyers Pascal Crosett and Eno Merkle of the Berlin law firm answer a question about labor law every two weeks. This text is about the so-called duty of disclosure.

There are things you would prefer the employer not to know. When you get fined for driving under the influence, for example. or crime. Just as many employees don’t want their boss to know about a chronic illness.

On the other hand, there is the business owner, who of course also has an interest in knowing exactly who is sitting in front of him. If circumstances arise that have had a negative impact on the employment relationship, you are initially obligated to inform your supervisor, as you are subject to what is called a disclosure obligation. However, there are clear limits. Overview.

diseases

Basically, illness is a private matter and should not be disclosed to the employer. Even if you are unable to work due to an illness, you do not have to inform your supervisor what you are sick with – only about the duration of the absence. There is only a disclosure obligation for some exceptions. For example, if the disease is contagious or related to your work. This would be the case, for example, with an alcoholic taxi driver.

Pregnancy

First of all, pregnant women are well protected under labor law. If an applicant is asked in a job interview about her desire to have children or even an existing pregnancy, this is not allowed. This means that not only does she have to answer, but she can also lie about this point.

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If a pregnant woman already works in a company, then the Labor Code contains special provisions. Pregnant women generally have special protection against dismissal. In general, there is no obligation to notify the employer, but employees can only benefit from protective measures if they inform their boss about the pregnancy.

criminal record

Criminal records are generally not subject to disclosure requirements. Because apart from the fact that those affected will find it very difficult in the labor market, employers’ interest in knowing criminal records should only be recognized if the criminal record is relevant to the specific job. If there is no such “link” between the job and the criminal record, then this is a private matter.

Therefore, the employee is not usually required to disclose his criminal record without being asked to do so. It is another thing if the employer openly requests. Whether you have to answer honestly depends on whether your manager has a legitimate interest in this information. If it is missing, then there is no need to answer the question about the criminal record. In a job interview, you could even lie about this point.

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A legitimate interest exists only if you are not allowed to perform the agreed work because of a criminal record or if there are justified suspicions about it. This can be the case, for example, in some management positions. Other examples are property crimes by cashiers, traffic violations by bus drivers or sexual abuse of kindergarten children by kindergarten teachers.

However, anyone facing a prison sentence in the near future should disclose this to their employer. It has nothing to do with the act committed by a person, because the employee cannot perform his contractually agreed service in custody. However, there is disagreement as to whether an offense committed in a medical condition is subject to disclosure.

Legal consequences of breaching the duty to disclose

If the employer is fraudulently deceived, they can challenge the employment contract. This is the case if you have violated the duty to disclose or lied about an acceptable question. However, in order for the employer to be able to terminate the contract, you must hide or refuse job-related information.

So the obstacles are great. If you find yourself in such a situation, you should definitely get it checked out by an employment law attorney. In practice, it is often up to the employer to offer a termination agreement with a slightly longer notice period.

If you have already done work, the working relationship will not usually be reversed as a result of a challenge, but will only be terminated in the future. However, your boss can compel you to pay compensation. For example, if the above-mentioned bus driver concealed his previous conviction for traffic offenses during the application and caused a traffic accident after the start of the employment relationship due to drunk driving.

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