A recent finding in March 2013 by the Australian Human Rights Commission (AHRC) that an employer discriminated against a job applicant by failing to offer him employment as a market analyst because of previous drink-driving convictions highlights the need for caution when carrying out pre-employment criminal record checks on prospective employees.

Discrimination on the grounds of criminal record - is it unlawful?

Australia-wide Federal legislation recognises that discrimination occurs where a prospective employee has been denied employment on the ground of their criminal conviction if the nature of the conviction does not affect the candidate’s ability to perform the inherent requirements of the job. Unusually, however, the legislation does not go as far as making that discrimination unlawful. Yes, as odd as it sounds!

Consequently, although the AHRC can investigate alleged acts of criminal record discrimination, it does not have the power to award compensation or to ‘punish’ the offending employer. For this reason the legislation is sometimes regarded as a toothless tiger. In the above case, the AHRC recommended that the employer pay the job applicant $7500 for hurt, humiliation and loss of confidence. In another case it recommended compensation of $35,000. In both cases the employers refused to pay, maintaining their position that they had not discriminated against the candidates and this was an end to the matter.

However, employers would be unwise to ignore the issue of discrimination on the grounds of criminal record. Approximately a quarter of all complaints to the AHRC are about criminal record discrimination and although the AHRC cannot enforce fines or compensation, it is empowered to make findings that discrimination has occurred and to prepare a report about the matter for the Attorney General, to be tabled in Parliament. Clearly this may lead to negative publicity for the employer in addition to the time and expense involved in participating in AHRC inquiries.

Just to confuse matters, Tasmania and the Northern Territory have passed specific state/territory legislation making criminal record discrimination there unlawful and be aware that more stringent rules apply to spent convictions throughout Australia.

Cross border issues - visa refusal

In addition to the discrimination issue, pre-employment criminal records checks revealing a criminal record can also cause particular obstacles for an employer seeking to engage a candidate from overseas. Applicants may be denied entry into Australia where they do not pass the ‘character’ test, particularly if they have a conviction for an offence resulting in a custodial sentence of one year or more. Businesses wishing to employ such candidates may be forced to consider more unconventional approaches to employment such as the employee providing his services from an overseas office.

What can employers do?

  • Employers should consider making offers of employment contingent upon a criminal records check satisfactory to the employer.
  • Employers should avoid a ‘zero tolerance’ approach to criminal records in the recruitment process. Instead, employers should consider the nature of the conviction and its likely impact on a candidate’s ability to perform the role on a case by case basis.
  • Often it will be prudent for an employer to explain why a candidate has been unsuccessful and how it regards the criminal conviction as relevant to his/her ability to perform the role. This may deter the applicant from lodging claims of criminal record discrimination (or even discrimination on other grounds) in the AHRC.

Did you know? …

Following a Senate Inquiry, the proposed consolidation of the five commonwealth discrimination laws into one Act, reported in the February edition of Workplace View, has been dropped. The government acknowledged that more work needed to be done to ensure any changes made through a consolidation of the laws found the right balance between freedom of speech and protection from