Criminal background checks – what amounts to discrimination when considering an employee’s criminal record?

07 April 2020

It is sometimes necessary for employers to treat employees or prospective employees differently when making decisions about recruitment, promotion, work opportunities or dismissal. In certain circumstances, this might include lawfully refusing a person’s job application based on their criminal record. However, what is the bar for employers to reject job applicants with criminal records?

The Australian Human Rights Commission Regulations 2019 (Cth) (Regulations) commenced in Australia in early October 2019 and amended the definition of “discrimination” for the purposes of section 3(1) of the Australian Human Rights Commission Act 1986 (Cth) (Act).

The Regulations provide employers with greater certainty about when it is lawful to distinguish, to exclude or make a preference in relation to an employee, or a prospective employee, based on the person’s criminal record or an imputation that such a record exists. Arguably, the Regulations lower the bar the employers must meet to defend discrimination claims on the basis of a criminal record.

What were the requirements under the previous regime?

Under the previous regime, an employer was able to defend a discrimination claim on the basis of a criminal record if they were able to establish that the person’s record meant they were unable to perform the inherent requirements of a particular job.

In practice, the old regime created some difficulties for employers because:

  • Each job and each person’s criminal record are different;
  • It is sometimes difficult to determine what the inherent requirements of a particular job are; and
  • It can also sometimes be difficult to determine whether a person’s particular criminal record will necessarily disqualify them from satisfying those requirements.

The catalyst for change in the legislation was the Australian Human Rights Commission’s decision in BE v Suncorp Group Ltd [2018] AusHRC 121, in which the Commission found that Suncorp discriminated against a job applicant on the basis of his child pornography convictions.

Suncorp argued that the applicant’s criminal history indicated he was not of sufficient character and integrity to be trusted at work or to deal with confidential information which it argued was an inherent requirement of the position.

The Commission rejected Suncorp’s argument and found that the applicant’s criminal history, whilst “very serious“, did not indicate he would be unable to fulfil the inherent requirements of the job to be trustworthy and of good character.

In response to the Commission’s decision, the Commonwealth Minister for Industrial Relations observed that this case “demonstrated that our laws in this area were not working and were at complete odds with common sense“.

What are the requirements under the new regulations?

In short, the Regulations now prohibit an employer from discriminating against an employee, or a prospective employee, on the ground of an “irrelevant” criminal record.

While the Regulations do not define what constitutes an “irrelevant” criminal record and this does potentially leave some room for differences in opinions about how they should be applied, the intention is to allow employers to take into account a broader range of factors when considering whether a person’s criminal record is relevant to the position being applied for and the duties they will be required to perform.

What are the implications for employers?

Given that the Act enables the Commission to conciliate and hold public inquiries into complaints of discrimination in an employment setting, the Regulations may potentially affect many businesses across Australia. The Regulations remain relevant not only to employee recruitment, but also performance reviews, promotions or even employment termination decisions. An adverse finding following a public inquiry can certainly generate public criticism and potentially cause embarrassment to a business.

However, it is important to note that the Regulations will have no impact on professions and occupations where holding certain criminal records makes employment unlawful. For example, certain kinds of criminal record will prevent people from working with children or being registered as a lawyer or a doctor. In these cases, employers should of course still take steps to ensure their employees hold any relevant clearance certificates required by industry-specific laws and regulations.

It is also important to note that State and Territory legislation in Tasmania and the Northern Territory contains specific prohibitions against discrimination based on a criminal record. Non-compliance with these prohibitions may attract penalties. If your business operates within Tasmania or Northern Territory, you may wish to seek specific advice on your obligations arising in the context of these State and Territory laws.

If you have any concerns about how the Regulations may affect your business, please contact us.

This article was written by Clare Raimondo, Partner and Michal Bergander-Florek, Solicitor.

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