The recruitment process should provide the employer with sufficient grounds to assess whether an applicant is suitable for the advertised position. Everyone applying for a new job wants to make a good first impression and present themselves in the best possible light. How far does the job applicant's duty of disclosure extend?

Does a job applicant have a duty to disclose "baggage" from previous employment?

A job applicant's duty to disclose information depends on what information the employer requests and whether the information relates to matters of direct relevance to the applicant's suitability for the position. Primarily, information about professional qualifications, work experience, and personal characteristics is relevant.

The starting point is that the employer is responsible for defining the criteria for a vacant position. As a starting point, the employer is also responsible for ensuring that the criteria are sufficiently clarified. Employers should document the questions that have been asked and the answers that have been given on matters that are important for the recruitment.

Statutory restrictions

In some areas, there are legal restrictions on what information employers can obtain prior to hiring. As a general rule, it is not permitted to ask about pregnancy, religious beliefs, ethnicity, disabilities, or sexual orientation. Job applicants are therefore not obliged to disclose such information on their own initiative. An employer may not request a police certificate from a job applicant unless there is legal justification for doing so.

In other cases, the job applicant's duty to disclose information must be determined on an unwritten basis. The general duty of loyalty in contractual relationships also applies to employment contracts. The starting point is what the parties have reasonable grounds to expect from each other.

Does a job applicant have a duty to disclose previous labor disputes?

In a case concerning the dismissal of a waiter during his probationary period, the Supreme Court ruled that the employee was not obliged to disclose a previous labor dispute. In the case in question, the dismissal was justified on the grounds of unreliability, as the employee had not disclosed upon hiring that he had been dismissed by his previous employer due to threats and cooperation problems. The previous employment relationship was also not included in the applicant's CV.

It was emphasized that the employment relationship with the former employer was not terminated on the basis of proven facts, but was based on disputed facts. It was understandable that the employee wanted to keep the information about his employment relationship hidden. Ultimately, the information could have kept him out of the labor market as a waiter, despite the fact that the cooperation problems at the restaurant in question did not necessarily make him unfit to work as a waiter at another restaurant.

The fact that the employee had provided misleading information about what he had been doing for the past two years was not sufficient grounds for dismissal. It was emphasized that there were no complaints about his work performance or reliability in his new job.

Employer's management of the duty to provide information

The main rule is that job seekers are generally not obliged to disclose previous labor disputes. However, employers are entitled to ask about this. Employers should provide a thorough description of the requirements – both professional and personal. Job applicants are then encouraged to disclose relevant information. In order to uncover the job applicant's "baggage" from previous employment relationships, the employer must ask specific questions – and if the employer requests such information, a job applicant will not be able to provide information that is positively incorrect in accordance with their duty of loyalty.