Employers are in a difficult situation when an otherwise suitable job candidate applies for a position but after pre employment screening, a criminal record surfaces and the red flag is raised. On the one hand, former offenders (just like everyone else) should be afforded equal opportunity in finding employment. Having said that, employers want to be confident that the people they hire are honest and reliable.
The number of complaints to the AHRC from people alleging employer discrimination on the basis of criminal record has skyrocketed. This indicates that further guidance is needed in this area. Importantly, employers must remember that requesting a criminal record check is only necessary if a criminal record may impact the person’s ability to perform the inherent requirements of the role.
In a recent case heard by the AHRC, a Data #3 employee claimed that the company discriminated against him when he was dismissed because of a ‘serious criminal record’. The employee claimed that he asked on two occasions during the interview process whether he needed to pass a criminal record check or security clearance. He was assured this was not a condition of his employment. Data #3 denied discriminating against the employee and maintained that it was entitled to end his employment during the probationary period. They argued that the employee’s "recent and serious criminal actions" raised concern over his suitability for the role.
Data #3 also denied the employee’s claims that they had said he was not required to undergo a police check, stating he might have needed to pass a security clearance as some of their clients were government departments. They maintained that the ultimate decision to dismiss the employee was because he failed to disclose his criminal record, which raised concern over his honesty and integrity.
However, the AHRC concluded that the company’s decision to terminate the employee constituted an exclusion made on the basis of criminal record. The AHRC also rejected that a police check was necessary for the inherent requirements of the role. In addition to compensation, the AHRC recommended that Data #3 develop their policies on workplace discrimination and conduct training for HR staff to assess whether a criminal conviction prevents an employee from performing the inherent requirements of the role. While AHRC decisions are not legally binding, being named and shamed in an AHRC parliamentary report can be damaging to a business’ reputation. Therefore, it is important for employers to promote equal opportunity and ensure they are not conducting criminal record checks unnecessarily.
Lessons for employers
- Develop written policies on preventing discrimination (including on the basis of a criminal record).
- Ensure HR staff are trained in assessing whether a criminal conviction prevents an employee from performing the inherent requirements of the role. Is a criminal record relevant to the job?
- If a criminal record check is required, let it be known at the outset of the recruitment and selection process.
- Where a criminal record is found, give the applicant an opportunity to disclose further information surrounding the offence. Consider mitigating factors such as age at time of offence and punishment served.
- Where a criminal record is found and concerns are raised, get in touch with the applicant’s referees and consider their employment record before making a final decision.
- Ensure that those with a criminal record are not discriminated against in their conditions of employment i.e. denied a promotion or further training.
- Ensure all information collected is confidential and then destroyed after a reasonable time has elapsed.
Under the AHRC Act, a criminal record is only relevant if it means an employee cannot perform the inherent requirements of the job. Otherwise, former offenders should be afforded equal opportunity in finding employment.
 AW v Data#3 Limited  AusHRC 105.