Criminal record: can we refuse to employ them?

Q&A

Criminal record: can we refuse to employ them?

Many employers conduct police checks as part of their recruitment process. But is it discriminatory to reject a job seeker because they have a criminal record?

Is it discriminatory to have a blanket ban on employing anyone with a criminal record?

This question was recently sent to our Ask an Expert service.
 
Q Our company has a recruitment policy that prohibits employment of a person with a criminal record. Our company operates in the finance industry. We have a new head of HR director who has questioned the validity of this policy, with the view that it may be discriminatory. The reason for the policy is due to sensitivity of clients to employees with such a background and as due diligence with respect to accounting standards to protect the company’s reputation.

The policy does not qualify the nature of the criminal offence nor when the offence may have occurred. Would a blanket prohibition on the employment of people with a criminal record constitute discrimination?
 
A It is not discrimination if a person’s criminal record means that he or she is unable to perform the inherent requirements of a particular job. This must be determined on a case-by-case basis, according to the nature of the job and the nature of the criminal record.

Employers in certain industries may also be legally obliged to refuse employment to people with certain types of criminal records. For example, a record of sexual crimes involving children would bar offenders from school teaching roles. Likewise, it would be reasonable for a financial institution to refuse to employ a person with a criminal offence which involved dishonesty or fraud.

Conversely, a drink driving conviction would not prevent an employee from performing the inherent requirements of an administrative role so it may not be relevant.
 
Employers in certain industries may be legally obliged to refuse employment to people with certain types of criminal records. A criminal record may prevent a person from obtaining the necessary licence as a prerequisite to performing  work, for example, in the security industry or the gaming industry.
 
In the case of the above recruitment policy, reference to a ‘relevant criminal conviction’ may be considered more appropriate.
 
FWAct
 
In the case of the Fair Work Act (FWAct)(s351), it does not prohibit discrimination as such, but rather adverse action which is motivated by any one of a list of prohibited reasons which, generally, may be said to fall under discriminatory conduct. ‘Criminal record’ is not listed as a prohibited reason under the discrimination definition in the FWAct.
 
Other federal law
 
The Australian Human Rights Commission Act includes discrimination on the basis of ‘criminal record’ and also covers prospective employees. The Australian Human Rights Commission may investigate complaints of discrimination in employment on the basis of criminal record and, where appropriate, try to resolve them by conciliation.

When a complaint cannot be resolved by conciliation, or where conciliation is inappropriate, and the Commission finds that there has been a breach of human rights or that workplace discrimination has occurred, it may prepare a report for the federal Attorney-General which must be tabled in Parliament. Surprisingly, complaints to the AHRC on the basis of criminal record account for 23% of all complaints received by the Commission.
 
State law
 
At the state level, Tasmania and the Northern Territory have laws that make criminal record discrimination unlawful. However, in other states and territories, criminal record discrimination is not specifically prohibited by law.
 
‘Spent’ conviction legislation
 
This is legislation that protects potential employees from answering questions about their past employment record after a certain number of years since the conviction. This means the applicant is not obliged to disclose it. The types of convictions and the timelines vary significantly among the jurisdictions.


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