Preventing discrimination in employment on the basis of criminal record

Employers have the right to employ someone of their own choosing, based on a person’s suitability for a job. After all, it is the employer who best understands the main requirements of the role and what qualities are needed in an employee to meet those requirements. Yet it is also in an employers’ interests to treat candidates and employees fairly and in accordance with legal obligations and anti-discrimination laws to avoid complaints alleging discrimination on the basis of criminal record.

The significant number of complaints in this space indicate there is a great deal of misunderstanding by employers and people with criminal records about discrimination on these grounds. While an employer may be obliged to conduct a police check where there is a legal requirement that an employee or candidate should not have a certain criminal record, there are strict guidelines employers must adhere to mitigate risk and comply with laws and best practice.

What are key considerations during the recruitment process?

Employers must only ask candidates and employees to disclose specific criminal record information if they have identified that certain criminal convictions or offences are relevant to the inherent requirements of the job. All questions during the recruitment process should not require a candidate or employee to disclose spent convictions unless exemptions apply.

Asking an applicant or employee irrelevant questions about their criminal record and then relying on this information to treat the person less favourably could be discrimination. If this does occur, a candidate may lodge a complaint of discrimination in employment on the basis of criminal record.

For example, an applicant for a job as a nurse was told their application would not be considered if they did not consent to a police history check. The employer could not show that it was relevant to the inherent requirements of the job that a police check be completed. This could be discrimination.

Advertisements and job information for a vacant position should clearly state whether a police check is a requirement of the position. If so, the material should also state that people with criminal records will not be automatically barred from applying (unless there is a particular requirement under law).

Criminal record checks should only be conducted with the consent of the candidate or current employee, and information about a person’s criminal record should always be stored in a private and confidential manner and used only for the purpose for which it is intended.

How can employers determine if criminal record information is relevant?

The relevance of a candidate’s or employee’s criminal record should be assessed on a case-by-case basis against the inherent requirements of the work they would be required to do and the circumstances in which it is to be carried out. A criminal record should not generally be an absolute bar to employment of a person.

If an employer takes a criminal record into account in making an employment decision, in most cases the employer should give the candidate or employee a chance to provide further information about their criminal record including, if they wish, details of the conviction or offence, the circumstances surrounding the offence, character references or other information, before determining the appropriate outcome in each case.

What if criminal record information is relevant to the role?

If criminal record information is considered relevant, best practice states that an employer should have a written policy and procedure for the employment of people with a criminal record which can be incorporated into any existing equal opportunity employment policy, covering recruitment, employment, and termination. Additionally, businesses should train all employees involved in recruitment and selection on the workplace policy and procedure when employing someone with a criminal record, including information on relevant anti-discrimination laws.

Businesses should create an environment which encourages an open and honest exchange of criminal record information between the employer and candidate or employee. If you need assistance and practical advice on how to prevent criminal record discrimination in the workplace, as well as best practice principles when recruiting or employing someone who may have a criminal record, get in touch with our team.

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