Guidelines for preventing employment discrimination on the basis of a criminal record

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Employers have every right to select candidates they deem most suitable for the role during the hiring process. However, employers must treat all candidates fairly to avoid legal liabilities, given the rise of discrimination complaints to the Australian Human Rights Commission (AHRC) over the past few years.

The Australian Human Rights Commission Act 1986 (Cth) defines discrimination as any distinction, exclusion, or preference based on colour, race, political opinions, religion, social origin, and other factors that threaten equality of opportunity.

However, this article will focus extensively on guidelines for preventing employment discrimination based on a criminal record.

How criminal record affects employment opportunities

A criminal record can potentially mar an applicant's ability to secure their dream job. Employers have a legal responsibility to protect their workers, clients and business. Hence, criminal records that hamper their ability to do so will not be overlooked. For instance, a person with a criminal record of corporate fraud offences will find it difficult to secure employment in the financial services industry.

Unfortunately, employers sometimes take things to the extreme, disqualifying candidates on baseless criteria. For instance, in the case of Ms Renai Christensen v Adelaide Casino Pty Ltd, Ms Christensen's application as a bar attendant was denied because she stole two bottles of alcohol when she was 15 years old. This was after she had moved on and worked as a bar attendant at two other establishments, cementing her excellent character. Her denial was ruled as discrimination.

Let's dive right into the guidelines that will help businesses and HR workers prevent situations like this.

10 guidelines for preventing employment discrimination

As an employer, you must promote an environment where applicants and employees feel free to talk about their criminal records. When the workplace is hostile or overly vindictive towards those with criminal histories, offenders are more likely to try to hide their criminal past. No one benefits from this in the long run.

The law explicitly clarifies that a person can only be denied based on a criminal record if their offence is relevant to the role. Hence, employers must only ask applicants to disclose criminal information pertinent to the position to make an informed decision.

As an employer, you should be transparent at all times. When advertising a new position, you should explicitly state if a background check is required for the role. More importantly, try to list the kinds of checks carried out. And to avoid cases of discrimination, the application should clearly state that those with criminal records will NOT be automatically disqualified (unless the law makes it illegal).

It is illegal to carry out a Nationally Coordinated Criminal History Check on a job applicant without their consent. Oral consent is not enough. You must receive the applicant's consent before you begin the process.

The Privacy Act 1988 (Cth) was implemented to provide a framework to protect employees' personal information. Hence, employers have a legal responsibility to store a person's criminal record securely and confidentially. But more importantly, you must only use the criminal record for the purposes it is intended for, as consented to by the applicant.

When assessing criminal records, most employers have a blanket policy, failing to recognise that no two criminal offences are the same. Hence, applicants must be individually evaluated, and their criminal record assessed against the inherent requirements of the role before reaching a verdict.

In most instances, the surrounding circumstances are crucial to getting a fuller picture of a criminal record. Hence, if the applicant wishes, allow them to explain the details of their conviction. That way, they have the chance to demonstrate why that incident occurred and the actions they have taken to become a better person.

You should have a written policy and hiring procedure for those with criminal records. With a consistent framework, you will ensure equal opportunity employment and avoid legal troubles down the line.

You must ensure that all employees involved in the hiring process are up-to-date with the relevant anti-discrimination laws. With the proper training, your hiring process can be discrimination-free.

As noted earlier, all checks must be relevant to the position in question. That's why you must identify what checks are required.

In conclusion, employers must identify what checks are required to avoid discrimination and get all the necessary information to make an informed hiring decision.

How can I obtain a Nationally Coordinated Criminal History Check?

If you are an individual, you can obtain a Nationally Coordinated Criminal History Check online via Australian National Character Check's application and informed consent form. The results are dispatched via email.

Business and Enterprise customers are able to sign up to ANCC's business portal where they can order, manage, track and view candidates' Nationally Coordinated Criminal History Check results on their business portal.

Organisations will undergo a process of approval prior to being granted access to ANCC's business portal for the purpose of nationally coordinated criminal history checks.

ANCC sends an invite to the applicant to complete their background check online and handles the application and informed consent form. Contact ANCC's business and enterprise partnerships team today to enquire about setting up a business portal for your organisation.

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