Criminal record discrimination is a source of great intrigue (and confusion) for many employers.

If a criminal record means that an employee cannot perform the inherent requirements of his or her role, this is of itself a justification for not hiring someone or terminating an employee’s employment. This could occur where a role requires a security clearance or a working with children check that an individual cannot attain due to a criminal record.

However, the circumstances where an employer can rely on an individual’s criminal record to make employment decisions are not always this clear-cut.

What is a criminal record?

Generally, a person’s criminal record includes any information returned in a police check. This may include matters that police are currently investigating, matters awaiting court hearing, and charges and convictions including any penalty or sentence. It may also include driving offences and fines.

A criminal record also includes the circumstances surrounding an offence. For this reason, employers may wish to give employees the opportunity to explain the background to any criminal record before relying on the record in making employment-related decisions.

Criminal record discrimination in Australia

Discrimination in employment on the basis of an irrelevant criminal record is prohibited in the Northern Territory and Tasmania. An irrelevant criminal record is a record relating to an arrest or proceedings where the charge was dismissed, or withdrawn, or the person was found not guilty. Discrimination in employment on the grounds of a spent conviction is unlawful in Western Australia and the Australian Capital Territory. A spent conviction is one where a certain period of time, usually 10 years, has passed since the conviction. Where an employer discriminates against an employee on the basis of a criminal record in one of these jurisdictions, an employee can seek compensation from the employer in the local tribunal.

Under federal legislation, an employee (including a prospective employee) can make a criminal record discrimination claim to the Australian Human Rights Commission (AHRC). However, if an employer has discriminated on the basis of a criminal record, the discrimination is not treated as “unlawful”. There is therefore no capacity for an employee to initiate litigation under federal law alleging discrimination on the basis of criminal record.

Where a complaint of criminal record discrimination has been made, the AHRC can:

• investigate;

• attempt to resolve the matter through conciliation; and/or

• publish a written report on the claim and make recommendations, including that the employer pay the employee compensation.

An employer can however ultimately reject the AHRC recommendations and refuse to pay compensation or comply with any other recommendation. This is what employer Data#3 did recently when the AHRC found that it had engaged in discrimination on the grounds of an employee’s criminal record.

The Case1

Background

In December 2013, Data#3 employed Mr AW in an IT role with a remuneration package of around $185,000 per annum. In January 2014, a “major supplier” informed Data#3 that Mr AW had been convicted in New Zealand for selling the drug MDMA. Mr AW confirmed this conviction when questioned by Data #3.

Data#3 subsequently terminated Mr AW’s employment. Mr AW was told in a meeting that his employment would be terminated due to his criminal conviction. However, the termination letter that Mr AW was subsequently provided stated that Data#3 was terminating his employment on the basis that he was still within his probationary period.

The arguments

Mr AW filed a complaint of criminal record discrimination with the AHRC, submitting that:

1. he was convicted and sentenced to one year home detention in New Zealand in 2011 for six counts of selling the drug MDMA;

2. the circumstances of the conviction included a finding that he had been an insignificant part in drug dealing undertaken by others and that his primary involvement was in the communications between the dealing parties; and

3. he was at all times able to perform the inherent requirements of the role with Data#3. During the recruitment process, he had asked at least twice whether it was a condition of employment that he pass a criminal record check or whether he needed to obtain a security clearance.

In response, Data#3 submitted that Mr AW was not terminated because he had a criminal record. It stated he was terminated because his failure to disclose a criminal conviction was inconsistent with Data#3’s core values, and the requirement that its employees hold and exhibit the highest ethical standards. Data#3 also submitted that, during the recruitment process, Mr AW was informed that security clearances were a requirement to perform the role, having regard to its customer and vendor requirements. 

AHRC findings

President Gillian Triggs of the AHRC concluded that Mr AW’s criminal record was the reason Data#3 terminated his employment—once Data#3 became aware of Mr AW’s criminal record, it became concerned about his suitability for the role and his ability to perform its inherent requirements and decided to terminate his employment.

President Triggs found integrity, trust and credibility, including a history of ethical business practices, were inherent requirements of Mr AW’s position. On the other hand, the ability to obtain a security clearance, or the ability to pass a Police check, was not.

President Triggs concluded that there was not a sufficiently close correlation between the inherent requirements of the position and the termination of Mr AW’s employment. That is, she was not persuaded that Mr AW was unable to perform the inherent requirements of his role.

President Triggs scrutinised Data#3’s internal policies and training practices, recommending that it:

• develop workplace policies in relation to the prevention of discrimination in employment on the basis of criminal record;

• conduct training to assist staff to fairly assess whether a job applicant with a criminal record can perform the inherent requirements of a particular job;

• pay Mr AW an amount in compensation for loss of earnings caused by its termination of his employment, which the AHRC found to be discriminatory; and

• pay Mr AW $5,000 in compensation for hurt, humiliation, and distress as a result of being discriminated against.

Data#3 said it would comply with the AHRC’s recommendations to develop appropriate policy and conduct training on criminal record discrimination. However, Data#3 submitted to the AHRC it “is not under any legal obligation to pay [Mr AW] any compensation and will not do so”.

Checklist for employers

• Regardless of the jurisdiction, the relevance of a criminal record to employment-related decisions should always be assessed on a case-bycase basis. Ask yourself—how does the employee’s criminal record impact on your company’s reputation or the capacity of the employee to perform the inherent requirements of the role?

• Before making employment decisions based on information obtained from a police check, give the employee the opportunity to explain the circumstances surrounding the information contained in the police check.

• Protect your brand! While the AHRC can only make recommendations, a finding of criminal record discrimination has the potential to cause reputational damage to an employer—the AHRC is required to deliver reports to the Attorney-General which are tabled in Parliament and remain on the public record.

• Ensure that you consider the interplay with other employment jurisdictions. In particular, where an employee has access to the unfair dismissal jurisdiction, employers must consider whether, in all of the circumstances, it would be “harsh, unjust, or unreasonable” to terminate the employee’s employment on the basis of their criminal record.