As part of our pre-employment recruitment process we require prospective employees to undergo a police check and a candidate’s result has come back with a history of criminal records. Can we refuse to employ this person?
Refusing to employ a person because of their criminal record can be discriminatory unless the person’s criminal record is directly relevant to the inherent requirements of their job in the context of the circumstances of the workplace where the job will be carried out.
An inherent requirement is something that is essential to the position, rather than aspects of the job that are incidental or peripheral.
A criminal record of fraud convictions is likely to be relevant to the inherent requirements of the job of a bank teller.Trustworthiness and honesty when handling money would be considered an inherent requirement of the job.
A criminal record which prevents an employee from obtaining a security clearance needed to access a client’s premises (for example, a storage site located within the boundary of an international airport) is likely to be relevant to the inherent requirements of a job which requires the employee to attend the client’s premises from time to time (for example, as a delivery driver).
A criminal record of dangerous driving convictions is not likely to be relevant to the inherent requirements of a job as a receptionist.
Whether a person’s criminal record is relevant to the inherent requirements of the job the person would be employed to do must be assessed on a case by case basis having regard to all relevant circumstances of the job, the workplace, the job applicant and the circumstances of the offending behaviour that lead to the criminal conviction.
An employer will need to discuss the criminal record with the job applicant and consider further information to assess whether a particular criminal record is relevant to the inherent requirements of a particular job.
The additional information to be considered includes (from the Australian Human Rights Commission publication, On the Record: Guidelines for the prevention of discrimination in employment on the basis of criminal record):
The Commonwealth, and most states and territories, have spent convictions laws.Under spent convictions laws, employees and job applicants are not required to provide information about their spent conviction/s and police will generally not release information about spent convictions to an employer.Some exceptions apply to certain types of offences and certain categories of employment (sex and violence offences and jobs involving working with children, for example).
An employer is prohibited from taking a spent conviction (when no exception applies) into account, even if the employer finds out about the spent conviction from the employee or job applicant or by other means.
Privacy laws may also apply to handling information about criminal convictions.
Some laws require an employer to screen employees and job applicants for their criminal record and take the record into account when making decisions about employment.Some examples of jobs which are regulated include teaching, nursing, transport operators, security officers and correctional services.
The Australian Human Rights Commission has a publication for employers about employment and criminal records, On the Record: Guidelines for the prevention of discrimination in employment on the basis of criminal record.
For further advice about refusal of employment please contact us orcall the Workplace Advice Line on 1300 55 66 77.
