When discrimination is criminal

Many people will have been asked to consent to a police check at some point in their career. In fact, it can often seem like a police check has become a standard part of the recruitment process.

Perhaps more than any other personal information, details of a criminal history can expose an applicant to discrimination. Employers might feel like they are entitled to know if their potential team members have any criminal past; but from the applicant’s point of view, disclosing such information heightens the risk of unlawful discrimination.

Under Australian privacy laws, information about an individual’s criminal history is considered sensitive information. As such, employers should tread carefully when requesting such information as part of the recruitment process.

A police check typically includes details of court appearances, convictions (including penalties or sentences), good behaviour bonds, court orders, charges and matters awaiting a court hearing.

Before requesting a police check, employers should think carefully about the inherent requirements of the job. If it can be shown that criminal history is relevant to these requirements, employers may be able to ask applicants to consent to a police check. It is also worth checking the legislated exemptions that apply to particular organisations and roles.

Caution should be exercised in order to avoid over-zealous checking and the risk of discriminating against applicants. Employers should be aware that discrimination cases have been brought in this area where an employee’s past has been a reason for adverse treatment such as dismissal.

Should a police check be necessary, employers should ensure that this is stated in the job advertisement and it is advisable to conduct disclosure in writing rather than discussing it at interview. The Australian Human Rights Commission advises against interview questions such as:

• Have you ever been in trouble with the police?
• Have you ever been to court?
• Have you ever been charged with a criminal offence?

These questions can lead to an applicant disclosing spent convictions which may be not be required. Also, if these questions are prompted by the applicant’s appearance, they may give rise to further claims of discrimination due to assumptions made by the interviewer based on an applicant’s race, for example.

If a police check turns up some details of past criminal convictions, employers must still keep the inherent requirements of the job in mind. Apart from some specific exceptions, an applicant’s criminal history should only be considered to the extent that it is relevant to the inherent requirements of the role.

It is important to understand spent convictions. In most states and territories, a spent conviction scheme allows individuals to “wipe the slate clean” after a period of time. After a ten-year period, convictions for less serious crimes and where a short sentence was handed down are not required to be disclosed. Once again, there are some legislated exceptions to these spent conviction laws, and the legislation varies from state to state.

With legislation and attitudes towards employing ex-offenders shifting internationally, particularly in the UK and USA, it is important to stay up to date with current Australian legislation and to keep global trends in mind.

The complexity of laws relating to discrimination in the workplace means it is imperative that organisations have access to HR expertise. HR recruitment can be especially difficult for businesses that have no dedicated HR resources and who may be looking to develop an HR function or those seeking expert assistance for a specific project.

iHR Australia provides HR Recruitment services tailored to suit the needs of the client. With a range of services, organisations can engage an HR resource through iHR on a trial basis or perhaps access an on demand consulting service, we provide solutions to meet our clients’ specific needs.