Many potential employees will have a criminal record of some description.

Under what circumstances can an employer take into account an employee’s criminal record in deciding on whether to hire or not? What happens if you discriminate based on whether the prospective employee has a criminal record?

The Australian Human Rights Commission Regulations 1989 (Cth) list the following grounds of discrimination:

(i) age; or
(ii) medical record; or
(iii) criminal record; or
(iv) impairment; or
(v) marital or relationship status; or
(vi) mental, intellectual or psychiatric disability; or
(vii) nationality; or
(viii) physical disability; or
(ix) sexual orientation; or
(x) trade union activity.

In a recent case, a company withdrew an offer of employment when it discovered the potential employee’s criminal record. The Australian Human Rights Commission directed that the company pay her $2500 compensation and to revise its recruitment and HR practices after the AHRC found it discriminated against her.

The candidate applied in September 2016 for a mobile speed camera role that the company had advertised on Seek. The company interviewed her and then offered her the job, subject to a criminal record check and a medical assessment. The potential employee told the company that a National Police Check would probably yield a record of offences and requested that it complete that process first before requiring the medical assessment, the next step in the recruitment process.

The potential employee anticipated a response from the company the following week and, when it did not arrive, she made repeated attempts to contact the company about the progress of her application. It was not until mid-October that she found out via telephone that it would not proceed because of her criminal record. She was told that the company was to withdraw her offer of employment as companies it worked with were strict about issuing licences to people with a criminal history.

The applicant had been convicted of assault occasioning actual bodily harm in November 2004, when she was 19, and possessing marijuana in May 2007, when she was 22.

The company argued that it did not proceed with engaging the applicant because of her unsatisfactory police check. It was not discriminatory because the applicant was unable to fulfil the inherent requirements of the position, that being a clean criminal record.

The Commission accepted that the company had a contract with the NSW roads department (RMS) that required it to screen candidates for their criminal record. The Commission held that “a general standard of trustworthiness and good conduct” is an inherent requirement of the job. The Commission said in response to the company’s submission that the role requires that its occupant can “handle potentially highly volatile situations” involving members of the public who initiate “unwelcome interactions” such as spitting on the officer or their vehicle, an inherent requirement was to “be able to respond calmly and professionally in hostile or potentially volatile situations”.

The company also submitted that the RMS would not accept the candidate as a fit and proper person because she would have access to the organisation’s proprietary information. The Commission accepted that proper handling of proprietary information was an inherent requirement of the job.

The Commission said the convictions did not make the candidate untrustworthy in 2016. There was not a “sufficiently tight correlation” between the inherent requirements of trustworthiness and good character and the company’s act of excluding her because of her criminal record, nor was there a close enough link with the requirement to act calmly and professionally in hostile or volatile situations, or to properly handle proprietary information.

The Commission said the candidate had no obligation to disclose information beyond her disclosure of her criminal record and offering her willingness to discuss it. Without contacting the candidate and ascertaining the circumstances of the offence and any rehabilitation during the past 12 years, the company “did not have the information necessary to undertake a sufficiently comprehensive and individualised assessment” – a process that is “usually a necessary step” in determining whether a person can fulfil inherent requirements of a particular job.

Lesson for employers

A criminal record will be an important factor to the extent that the prospective employee cannot meet the inherent requirements of the job. So, in a retail situation, a conviction for theft may mean a role in cash handling is not appropriate. A potential driver may not be appropriate with a criminal history of breaking the traffic laws. There has to be a correlation between the conviction and an important part of the job for the criminal history to be relevant in making the decision to hire an employee.