The Australian Human Rights Commission (AHRC) recently found that Suncorp discriminated against a job applicant on the basis of his criminal record. In that case, Suncorp withdrew a conditional offer of employment after routine background checks revealed the job applicant had convictions for child pornography offences. Suncorp said it withdrew the offer because it had “serious concerns” about whether the applicant was able to perform the inherent requirements of the position and because an internal candidate had been appointed to the role.
Discriminating against employees and job applicants on the basis of an irrelevant criminal record and/or spent convictions is unlawful in some Australian states, although the laws vary from state to state. At the federal level, discrimination in employment on the basis of criminal record and/or spent convictions is not unlawful, however the AHRC has the power to investigate complaints and may conduct a conciliation to resolve a complaint. If the AHRC makes a finding of discrimination and the matter cannot be resolved through conciliation, it may prepare a report for the federal Attorney-General, which must be tabled in Parliament. This is what occurred in the Suncorp matter.
In its defence, Suncorp argued that the applicant’s criminal record prevented him from performing the inherent requirements of the position with the result that its conduct was not discriminatory. In this respect, Suncorp accepted that the applicant was generally able to perform the key accountabilities, job requirements and technical capabilities attached to the role, but said he was unable to meet two key inherent requirements, namely:
“actively demonstrates Suncorp values which are: Courage, Honesty, Respect, Fairness Caring, Trust
positive, confident, decisive and empathetic, good presentation (emphasis in Suncorp’s submission) ”
Suncorp argued that the applicant’s criminal record prevented him from demonstrating these values, noting in its submissions that it was not confident “an applicant with the serious convictions that Mr BE has could meet the standards of trust and good character that the Group expects of its employees”. Suncorp also argued that the inability to satisfy the inherent requirements around trust and character meant the applicant could not perform certain aspects of the role, including dealing with confidential information, working from home largely unsupervised, working with technology and the internet and promoting Suncorp’s corporate responsibility agenda. Suncorp also submitted that the applicant’s failure to disclose his criminal record in his initial online application, despite being asked a direct question about criminal records, raised further concerns about trust and character.
The AHRC rejected those submissions and found that Suncorp discriminated against the applicant on the basis of his criminal record. In reaching that decision, the AHRC noted that the applicant’s convictions were “undoubtedly very serious”, but went on to say that “based on the material before the Commission, including Mr BE’s work experience and training, it is not apparent that he is unable to fulfil the requirement to be trustworthy and of good character”.
The AHRC recommended that Suncorp pay the job applicant $2,500 as compensation for hurt, humiliation and distress; that it revise its policies dealing with the recruitment of people with criminal records; and that it conduct training for staff involved in assessing prospective employees’ criminal record against the inherent requirements of the role. The AHRC’s report to the Attorney General indicates that Suncorp has declined to pay any compensation to the applicant, but has taken steps to address the remaining recommendations.
This is a timely reminder for employers who conduct criminal record checks to take the time to identify the inherent requirements of each position and to give genuine consideration to whether a particular conviction prevents an employee from performing those inherent requirements. Employers should also be aware of State laws applicable to their employees and candidates given that the prohibitions against discrimination on the basis of criminal record and spent convictions, and the exceptions to those prohibitions, vary from state to state.