Preventing criminal record discrimination from employment conditions

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While organisations, agencies and corporations work for a safer and healthier working environment, it should in no way breed a place of discrimination or purgatory for employees or applicants. There are reports that some employers’ requirements target specific people, especially those with criminal records.

While there are growing measures to curb the discrimination of workers/applicants, there is also a lack of disinformation among organisations' HR. Most of the internal policies of these organisations are enhancers of discrimination and unfair treatment of applicants during recruitment stages.

Employers should be more concerned, cautious and involved in the recruitment process, as any mal-administration can lead to severe legal and punitive measures. As an employer, there are many action steps you should take to prevent discrimination in your organisation's recruitment, including;

1. Include Criminal record requirement only when it is inherent to the role

Although standard industrial procedures mandate a background check, it has become a perfunctory requirement. Employers should ensure that necessary criminal records only assess candidates. It is a form of discrimination to disqualify an applicant because they have a previous criminal history (whether or not it is related to the role).

Employers should ensure the inherent requirements of the task that a person with certain records cannot perform optimally in the role.

2. Criminal Records must be kept private and destroyed properly

A common issue with using a candidate's record is the issue of proper handling and storing. A candidate’s criminal history is exclusive to only the holder, and if they choose to share such a sensitive document with your organisation, it should only be for authorised use.

Any other access granted to the private records of the applicant is a breach of the Privacy laws in Australia. It also contradicts certain parts of the Australian Human Rights Commission (AHRC) Act and can cause grounds for others to discriminate against them.

3. Applicants must be aware of the assessment criteria

Even where the absence of certain records is inherent to a job requirement, the applicant must know of the metrics and all standards used to qualify them. Employers must state their style or yardstick for evaluation before accepting Criminal records.

Every applicant still maintains their right to share/not their police check certificate with any employer/organisation.

4. Consider other necessary information in the police check

Employers must not be eager to dismiss a person based on their police check certificate. New policies in Australia even encourage organisations to assess applicants by other information in their police checks.

These policies understand that while a police check is an accurate information about a candidate's legal records, there are other influencing factors like;

If the court issued non-conviction sentencing for the case (less severe than conviction sentences)

• How long ago the offence occurred
• The extenuating factors the jury/judge considered in the matter
• Whether the court issued a Good Behaviour Bond
• If the person was a first-time offender

These make for less severe circumstances for the same offence compared to the opposite cases. If an employer includes these considerations, it will rescue the discriminations applicants/candidates bear during recruitments.

5. Include police checks in the final candidate assessment

Although people worry that this will make little difference, it matters greatly. It is more appealing to candidates to discover that they lost on the role on a matter of competence or other pertinent factors rather than their criminal history.

Based on competence levels, people are forced to improve themselves when they lose. But if they are disqualified based on their criminal records, they consider the organisation mistreated them.

6. Create a healthy working environment

Employers must play a massive part in ensuring that their workplace is conducive and comfortable. Many employees feel threatened because they are linked to “bad happenings” in the organisation/office due to their criminal history. This is another problematic/systemic method of discrimination.

Employers must know how to manage internal organisation issues through well-equipped and functioning Human Resource departments.

7. Avoid requesting criminal records outside the police check

The law permits candidates only to release their police check if they feel "comfortable" about such. An Employer should not coerce/blackmail an applicant into releasing their Criminal records through any other informal means. The holders alone have the right to release/disclose the result of a criminal record.

However, an employer can take any necessary and legitimate action against those who refuse to provide a police check (where required).

Criminal records regarding current employees

Not only new applicants/candidates can be subject to discrimination from organisations, but employees also are not left out. Complaints to relevant agencies are rising about the various "abuses" of employers to their employees regarding their Criminal records.

Although a regular and ongoing Nationally Coordinated Criminal History Check may be required, it is unethical to request it from your employee if it is irrelevant to the inherent requirements of the role they are carrying out.

Where it is relevant to request continuous Criminal records from the employee

Requesting for a police check a numbe of times in a year may be deemed a form of discrimination if it is not necessarily inherent or relevant to the role. A few roles may need constant Criminal records Check such as roles involving;

• ✔ Working with children,
• ✔ Working with the elderly or vulnerable populations,
• ✔ Working with people of special needs,
• ✔ Work requiring the person to deal with sensitive data or operations,
• ✔ Working in healthcare services or as a psychologist
• ✔ Working in finance-related institutions,
• ✔ Getting specific licences or permits
• ✔ Other sensitive positions

How to inquire about the criminal records of a current employee

We understand that employers still need to ensure the ongoing compatibility of every staff with their roles. For example, it would cause a legal issue if a current employee (educator) gets indicted in a child related offence.

However, it may be considered discrimination if the organisation evaluates an employee's traffic history/offence while their task does not relate to it.

When requesting for ongoing Nationally Coordinated Criminal History Checks, ensure that;

• The employee role/future roles relate to the records you request from them.

For example, a future operations manager for a bank should not have a history of financial crimes/offences against corporate institutions.

• The candidate is well informed of the regular background checks

Unless the candidate consents to a continuous background check, an employer cannot coerce them into providing their background checks. If the employee did not agree to this clause in the employment contracts, you should not force them.

• Consider their input to the organisation.

An employee may get a conviction while working with your organisation. However, if it does not affect the inherent requirements of their job role and is not a sensitive matter, they should move on from it.

• Engage in due process

Even when an employee has defaulted in any form, especially as exposed in their police check, an employer must still engage in due process. Your organisation may be found guilty of an offence under Industrial laws for non-adherence.

How long should employers ask for an updated Nationally Coordinated Criminal History Check?

A Nationally Coordinated Criminal History Check (police check) is a point-in-time check; it is as current as the day it was issued. Other records from that day onward will only appear on updated police checks; this is why many organisations request updated checks within respectable periods.

Usually, it is standard practice to request updated police checks once every year. However, sensitive roles or jobs may require the employee to provide updated police checks at least every six months to one year.

It does not matter how far in-between the organisation requests a police check, the most important matter is compliance with State/Territory and Industrial laws.

How does the Australian government handle discrimination?

Discriminations are broad, especially in corporate spaces, and some special commissions/agencies focus on specific matters.

The Australian Human Right Commission (AHRC) ensures that employees/candidates are not deprived of their fundamental rights to work or associate in Australia. Asides from mediating between employees and organisation, the AHRC may also charge any defaulting organisation.

• ✔ Industrial Laws

An organisation can also face industrial actions from these agencies if they fail to adhere to industrial laws. These laws cover matters like;

• Employee welfare and treatment at the workplace,
• Entitlements regarding job welfare
• Promotion and career growth
• Hazards and Risk management
• Safety of Employers
• Retirement benefits

• ✔ Privacy Laws

An organisation is mandated to keep personal information about candidates/employees private. People who handle or assess these records must be authorised and trained on fair dealings with candidate records within the organisation.

An applicant for a bartender role has a previous conviction for shoplifting

Although a shoplifting/theft offence is a serious offence, it is not necessarily a hindrance for a bartending role. Although the organisation's policies may frown on such offence, it can be discriminatory to refuse the person based on such, especially if the conviction is old.

An applicant for a Driver role has a previous Finance-related conviction

It is not inherent that a driver is financially astute (though it may be required, depending on what they convey). However, the organisation should look beyond this “irrelevant” conviction to other qualities that qualify them for the driving role.

How can I obtain a Nationally Coordinated Criminal History Check?

Individuals

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

Business and Enterprise customers are able to sign up to ANCC’s business portal where they can order, manage, track and view candidates’ police 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 police 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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