Criminal Law, Employment Law

Suppression order v good faith

The Supreme Court held recently that an employer can rely on or use information which was disclosed at Court and subject to a suppression order (in the case the name of the offender and the details of the charge).

The offence was wilful damage and assault. The employer decided that this outside-work conduct justified a final warning. All court instances agreed that the employer was justified in doing so.

I find this decision rather disturbing, especially the quite vague statement by the SC that suppression orders do not apply to someone with a ‘genuine interest in knowing’. What is that supposed to mean? In the case, an employer representative was present during the hearing. What if it had been a former colleague. Or a journalist acquainted with the emplyer. Or a competitor of the employer. Or say the offending employee was a Customer Represenative and one of his customers was in Court. Does that customer than has the right to tell his employer that their supplier employs an criminal offender? Where do you draw the line?

A suppression order should not be subject to exceptions, period. Once you open the door to people with a ‘genuine interest’, the order becomes meaningless. The whole point is to protect the offender, to allow to continue to live his life with his reputation intact.

The correct way would have been to find the employer in breach of the suppresion order, impose a fine and dont allow them to use the illegally obtained information. This may seem harsh, but think about it. The information is already out there anyway. The warning may be withdrawn, but everyone knows. The employee would, from now on, be under scrutiny and reminded to report any matters which could impact on the employment relationship. If it was a one-off, everyone will live happily ever after. If not, he would be out in a few months anyway.

But to throw away long standing principles about the validity of court orders and damage the integrity of the Court, not good. The decision, as it now stands, is an invitation to all employers to use whatever information they get hold of against their employees, whether protected by a court order or not.