Australia - Excluding candidates because of a criminal record may be unlawful
By Charles Power on January 18th, 2019
Discrimination on the basis of a candidate’s criminal record maybe unlawful unless it is based on the inherent requirements of the job. A requirement is inherent to a role if it is an essential feature or defining characteristic of the role and not peripheral.
There must be a sufficiently close or tight connection between the inherent requirements of the role and the exclusion of a candidate because of his or her criminal record.
In most cases it will be unclear to the employer simply on the basis of the results of a police check alone whether or not the conviction or offence is relevant to the inherent requirements of the job.
The employer will generally need to discuss the relevance of the criminal record with the job applicant, or invite them to provide further information, in order to assess whether the person can meet the inherent requirements of the job.
Relevant factors to consider in assessing the relevance of a candidate’s criminal record include:
How serious was the conviction or offence?
Was there a finding of guilt without conviction?
How old was the candidate when the offence occurred?
How long ago was the offending behaviour?
Is there a pattern of offences?
Did it take place in a work, domestic or personal context?
Has the candidate’s circumstances changed since the offence was committed?
Has the offence been decriminalised?
How does the candidate feel about his or her previous offending behaviour?
What references exist from people who know about the offending history?
In Smith v Redflex Traffic Systems Pty Ltd (2018) the Australian Human Rights Commission (AHRC) ruled that a company’s decision to rescind an offer of employment based on a candidate’s criminal record was not based on the inherent requirements of the job and amounted to discrimination on the basis of her criminal record.
The candidate applied for the role of Mobile Speed Camera Operator (MSCO) advertised and was invited to interview for the position.
After the interview, the company offered her the position subject to a criminal history check.
The candidate indicated that a National Police Check would likely return a record of disclosable offences. The company then withdrew her offer of employment “because certain regulatory bodies are strict about issuing licences to people who have a criminal history”. The candidate had been convicted of assault 12 years prior and sentenced to a community service order and possession of marijuana 9 years later (for which she was fined).
The AHRC was satisfied that the inherent requirements of the MSCO role included to be trustworthy and of good character, to be able to behave calmly and professionally in hostile or potentially volatile situations, to be able to properly handle proprietary information, and that the person has a driving record that demonstrates a commitment to road safety.
The AHRC ruled a criminal record alone cannot be a basis upon which to impute bad character.
The nature of that record, as well as the context in which it came into existence and relevant aspects of the personal circumstances of the applicant, should all be considered before a conclusion is reached as to whether an individual is trustworthy and of good character.
Without contacting the candidate and ascertaining the circumstances of the offence and any rehabilitation over the past 12 years, the company did not have the information necessary to undertake a sufficiently comprehensive and individualised assessment as to whether the candidate could fulfil inherent requirements of a particular job.
The AHRC recommended that the company:
revise its policies regarding the recruitment of people with criminal records;
conduct training for its recruitment, human resources and management staff involved in employment decisions, informing them of fair and non-discriminatory methods of assessing a prospective employee’s criminal record against the inherent requirements of the role; and
pay the employee an amount in compensation reflecting the hurt, humiliation and distress experienced by her as a result of the company’s conduct.