Policies and Procedures for Preventing Criminal Record Discrimination

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The Crimes Act 1914 (Cth) of Australia details lots of convictions, criminal behaviours and other prohibited acts in Australia. Anyone convicted of such actions or other punishable actions by the law will get s sentencing, which may include fines and imprisonment terms.

If a person gets sentencing, it will be disclosed in their criminal records in the Australian criminal database. Now, criminal records are not just a repository for a person's legal misbehaviours and offences against the law, they also serve a useful purpose – assessment.

Why do decision makers use a Criminal Record to assess a person?

The criminal records are available to any legitimate request or view. It contains all the legal history of the person in terms of;

• Convictions,
• Findings of guilt,
• Serious offences like Assault
• Traffic offences that result in a conviction from a court (e.g. drink driving or DUI offences)
• Pending charges,
• Offences against corporate bodies,

A Criminal record provides the employer with helpful and legal details of the candidate's suitability for the role. While the candidate may be qualified in other physical and qualitative standards, they may be "morally" or "legally" unsuited to the role due to the criminal offence in question clashing with the inherent requirements of the job.

An example is where a person with a history of pedophilia is employed as a school teacher.

Furthermore, Criminal records serve as a component of the organisation's internal risk-mitigating factor. Any workplace that incorporates this as a requirement to their recruitment can boast of having a healthy risk monitoring strategy.

Can an employer refuse a person employment due to their criminal records?

The Australian government allows employers the discretion to handle, interpret and assess a criminal record report independently. No strict laws govern how employers interpret the check results.

However, the legislation through the Industry Acts and related laws monitor this process in the background, and advocate or fight for worker's/employee's rights wherever they feel discrimination may have occured.

An employer can refuse a person a role they feel will be jeopardized by their criminal history. Such matters can complicate and affect the organisation's brand image and publicity.

Can an employee complain of discrimination?

Discrimination is such a subjective word unless where expressly defined in the law. Since organisations interpret the criminal records of a person as it affects them, it can be hard to tell when they are “crossing a line”. An employee who feels slighted or discriminated against can apply to commissions like the Equal Opportunities Commission (EOC) or the Australian Human Rights Commission (AHRC).

When such complaints are made, these commissions have the jurisdiction to investigate such matters and drag offending employers to court if necessary.

Because matters of discrimination are blurred to most employers, it is easy for them to get into trouble during recruitments should the correct and lawful steps not be taken.

What happens when such complaints are made about you?

As an employer, you want to get your brand as far as possible from any negative publicity or view. Of course, you should also try to escape the “bias trap” and treat all employees or candidates fairly. Also, you don’t want to truncate the role or job position for people with questionable character.

The AHRC or EOC after making their investigations can demand reparations from the offending employer. It does not matter if the employer assessed the Criminal records in "good faith" if there seems to be discrimination in the process.

There are certain ways you can circumvent the "discrimination” issue.

Policies your organisation should adopt when dealing with criminal records

While these policies are not written in any law book or legal institutions, they remain valid and ingenious ways to avoid the negative impact that comes with being tagged "discriminatory".

1. Written Policy and procedure

Every organisation must have its internal rules and structures all written out. All of your staff and members should be aware of even the simplest company's policies, especially in matters of criminal records. It must also show what you believe a criminal record is, and how it may affect the role.

The policy and procedure outlines should also be incorporated into other workplace policies on equal opportunity and anti-discrimination, if such a policy exists.

What your written policy should explain;

1. A statement about your commitment and plans to treat all people equally and fairly before their criminal records. The principal must go in line with them;
• Anti-discrimination – No to any form of discrimination,
• Privacy Laws under the Privacy Act 1988 – You will handle and keep their records confidential and handle it as expected in the law.
2. A summary of what your employer and employee rights are worth under the law. It must include up-to-date literature that provides more information about your policies;
3. Outline of other relevant legal requirements for the workplace, such as the employer's responsibilities under licensing and registration laws or Working with Children laws.
4. Procedures on how you assess/consider candidates for the position, including the reviews of their job applications.
5. Information on the internal or external complaint or grievance procedures if someone thinks they were treated unfairly.
6. Designated officers with responsibility for different elements of the procedure.

To get your policies to be widely accepted, practical and inclusive, employees and workers should be involved in the development of the policy.

Deriving these policies don’t have to be complicated or unnecessarily long, the most important thing is that they reflect your positions on discrimination.

2. Training of Staff for recruitments

It is not uncommon these days for organisations to outsource their recruitment process. This way, it is easier and less problematic for them. However, organisations that handle the recruitment process should ensure the proper training and orientation of their staff.

• ✔ Where possible, every staff member should get a copy of the written policy or any other documents that outline the rights of employees and job applicants.
• ✔ The recruiting staff should also be free from any form of bias or discriminatory behaviours even when they assess a person’s criminal records.
• ✔ Every staff should be able to complete their tasks without compromising the organisation's position in the people they recruit.

Such forms of training could be;

• Training them on the best form of compromise when a person is “unsuited” for the role they apply,
• Helping them understand the rights of employers in refusing a person for the role.
• Aiding them to see the candidate’s as humans who are capable of mistakes and prone to errors

3. Grievance and Complaint Process

Preventing an implosion in your establishment depends on how good your internal conflict/grievance resolution is. High impact issues can become very problematic and catastrophic if they get to the public. It is more cunning when it deals with your current employees.

Having internecine issues brew can be precarious for your business. Your HR team must consist of active and objective conflict resolution centres.

Even in large corporations, there is always the looming sentiment that some groups are more favoured than others. However, if the aggrieved employee can complain to the internal grievance/conflict resolution centre, it can help die down the tension.

In small businesses, it may become harder to have an internal conflict resolution centre. For such cases, it may be great to solve such matters internally with upper management.

Job applicants and employees who feel they are discriminated against based on their criminal record should be informed of their right to complain to the Commission or the relevant State and Territory equal opportunity body.

One example of such a case is a ruling of BE v Suncorp Group Ltd. the AHRC ruled that Suncorp had discriminated against Mr BE based on his criminal history records.

Here goes the story:

In March 2008, Mr BE got a conviction for possessing child pornography. And in 2015, he got another conviction for failing to obey the pre-agreed reporting obligations. However later in the year, Mr BE applied for an at-home ‘insurance claims assist consultant’ role with Suncorp.

A certain Mr BE initially applied for a role at Suncorp but did not fully disclose the extent of his criminal record. However, he provided consent to a nationally coordinated criminal history check being carried out. Subsequently, Suncorp interviewed the applicant and tentatively offered him employment.

However, upon receiving a copy of Mr BE's criminal history records, Suncorp withdrew the offer, stating the nature of Mr BE's criminal records and the availability of a substitute.

The AHRC noted that withdrawing an offer of employment based on a person's criminal record is discrimination, unless such refusal is supported by the inherent requirements of the job.

Suncorp argued that Mr BE's criminal record showed that he lacked the required characters; trustworthiness and good character necessary for multiple features of the role.

The AHRC found that while Mr BE's convictions were daunting, they did not relate to dishonesty. And was therefore irrelevant to his ability to perform the role. As such, Suncorp's withdrawal of the offer amounted to discrimination.

This case also goes to show that it may be wise for employers and HR departments to adequately carry out pre-employment screening checks prior to offering employment.

4. Conducting Nationally Coordinated Criminal History Checks

A Nationally Coordinated Criminal History Check will provide the up to date conviction records of the individual. However, the employer should clearly state in the advertisement why their criminal records are an important requirement.

It does a lot to clear up any other issues or dissenting views the candidate may have about the process. Some employers even go as far as disclosing why and how the criminal record reports are interpreted.

In some cases, the employer may obtain a criminal record report on behalf of the candidate. If they do this, it must be with the informed consent of the candidate. They must explain to the candidate;

• The reason for the check;
• How the results will be interpreted.

It follows that;

Details about a person's criminal record should always be stored privately and confidentially and used only for the originally intended purposes.

If the employer uses the criminal records as an employment decision, they must allow the employee or candidate the chance to provide further information. The employer should not be too dismissive of the results of their criminal records and may probe further as to;

• Circumstance around the conviction,
• What led to the conviction

If criminal record information is considered relevant, the employer should have a written policy on how it affects;

Employment of, covering recruitment, employment and termination.

The Effects of Discrimination through a criminal record

Without knowing, an employer could sideline a particular group due to the conditions in their Criminal record requirement.

Although the employer may have claimed to engage in the best practices, their policies on the criminal check mean people of a certain age, gender or skill may be discriminated against if the correct procedures are not in place to prevent this.

Some of the effects of discrimiantion on an organisation is;

• ✔ Probability of losing the best brains

Most employers are so focused on getting people with a clean record that they sacrifice the quality of the people they employ. By prioritising the Criminal records over anything, there is a possibility that you may be turning away capable hands.

Employers must learn how to balance between getting the right people and suitable personnel.

• ✔ Punishments from the Australian Human Rights Commission

It is legal for a court to suspend or sanction an organisation that was found to have wrongly discriminated against a person. The Equal Opportunities Commission or other industrial groups can drag such companies to the AHRC.

The AHRC is empowered in some states to impose fines or a license suspension period as punishment.

• ✔ Employee Morale

Organisation hierarchies and structures are important for the day-to-day running of the organisation. Once such structures are affected, it is difficult to get them back on track. Discrimination in the workplace can greatly affect the motivation of employees (especially those who belong to the group).

How can I obtain a Nationally Coordinated Criminal History Check?

Individuals

individuals who are after a Nationally Coordinated Criminal History Check for themselves can apply for a Nationally Coordinated Criminal History Check online via the Australian National Character Check (ANCC) website.

Business and Enterprise Customers

Approved Business and Enterprise users can sign up to ANCC’s business portal where they can add or remove portal users, assign user access levels, order, manage and track criminal history check results for their own candidates.

ANCC sends invites to the applicant to complete their Nationally Coordinated Criminal History Check and handles the entire process for the application and informed consent form up until the result is dispatched. Contact ANCC’s business and enterprise partnerships team today to enquire about setting up a business portal for your workplace.

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