So you’ve decided to introduce mandatory criminal history checks for all new and existing employees. Great idea! Police Checks are a good risk mitigation measure and your insurance broker will give you a gold star. But before you start drafting up your new policies and sending out memos to staff, here are a few things you should know to prevent nasty discrimination claims further down the track.
Employees and applicants should be made aware of their right not to disclose criminal history information subject to Spent Convictions legislation which prohibits the release of criminal history information older than 10 years unless the conviction is directly relevant to a job role involving working with children or vulnerable people or the conviction was serious enough to warrant a lengthy term of imprisonment exceeding 30 months. (I’ll be writing more on spent convictions in the next blog). Advertisements and job information for a vacant position should clearly state whether a police check is a requirement of the position. If so, the material should also state that people with criminal records will not be automatically barred from applying (unless there is a particular requirement under law). Police checks can only be conducted in Australia with the written consent of the job applicant or current employee.
Information about a person’s criminal record must be stored in a secure, private and confidential manner and used only for the purpose for which it is intended. Changes to privacy laws in 2014 will see large penalties applying to anyone not complying with this. The relevance of a job applicant or current employee’s criminal record should be assessed on a case-by-case basis. A criminal record should not generally be an absolute bar to employment but it can be considered an acceptable reason for exclusion if it can be shown that the nature of the offence is linked with the essential requirements of the role. A fraud conviction relating to theft of money through embezzlement would naturally be a good reason to exclude someone from a position handling the company books or cash handling for example.
A good starting point for determining whether a person should be excluded or employed based on a criminal record would be to determine the inherent requirements of the role and the circumstances under which essential duties are carried out. If an employer takes a criminal record into account in making an employment decision, in most cases the employer should give the job applicant or employee a chance to provide further information about their criminal record including, if they wish, details of the conviction or offence, the circumstances surrounding the offence, character references or other information, before determining the appropriate outcome in each case.
If criminal record information is considered relevant, an employer should have a written policy and procedure for the employment of people with a criminal record which can be incorporated into any existing equal opportunity employment policy covering recruitment, employment and termination.If criminal record information is considered relevant, an employer should train all staff involved in recruitment and selection on the workplace policy and procedure when employing someone with a criminal record, including information on relevant anti-discrimination laws. The essential or inherent requirements of a job should be determined prior to advertising the vacancy so that recruiters are better prepared to deal with applications from those with a criminal record. Under the AHRC Act an employer needs to show not only that they have determined what are the inherent requirements of a job, but also that they have considered whether an individual job applicant or employee meets these requirements. For more information go to http://www.humanrights.gov.au/publications/human-rights-record
Please feel free to comment or email me with any questions you might have on this topic at firstname.lastname@example.org