Discrimination on the basis of a criminal record

by 09 May 2011
How would your recruitment decision be affected if you discovered that a potential employee had a criminal record?
Heightened concerns about security and integrity in the workplace have made criminal checks an important part of the recruitment process for many organisations. The benefits of conducting background screening checks are clear for many businesses, but careful consideration is required if a candidate’s results show an adverse result. How do you ensure that the decisions you make are fitting with the appropriate legal framework?
If a candidate has a criminal record, you should consider how to apply the criminal background information to the job’s criteria. According to the Human Rights and Equal Opportunity Commission, in some states of Australia it is against the law to deny a candidate employment simply because they have a criminal record. By the same token, many businesses believe hiring a person with a certain type of criminal background could put them, their employees and customers at risk. It then becomes a question of what is relevant to the job and what isn’t.
A legally defensible and comprehensive hiring policy can help your organisation hire consistently and aid with compliance with laws that regulate hiring practices. Understanding the various laws regarding criminal records and hiring, and ensuring uniformity across your Human Resources groups are a sound foundation for mitigating hiring risks.
Criminal record checks and hiring considerations
A criminal record, also known as a Disclosable Court Outcome (DCO), returned on an applicant’s background check does not automatically disqualify a candidate for hire. Employers should be aware of legal considerations and relevancy of the background screening result to the job prior to making a hiring determination. There are laws in place to deter companies from using blanket policies regarding denying employment simply based on the occurrence of a criminal record.
The Federal Human Rights and Equal Opportunity Commission states that, ‘A basic principle of anti-discrimination is to enable an employer to refuse to employ someone if their criminal record is genuinely relevant to the essential requirements of the job.’
According to the Human Rights and Equal Opportunity Commission, Tasmania and the Northern Territory have laws in place that purport to prohibit employment discrimination based on the applicant having a criminal record. In other states and territories, the Commission investigates complaints and attempts to resolve them via conciliation where possible.
There are also certain regulated occupations across the country where applicable law may require criminal record screening and restrict employment based on the occurrence of certain offences. 
The Australian Human Rights Commission provides employers key principles in existing case law for determining a job’s inherent requirements. Since most jobs and applicants’ criminal records are different, there are no concrete yes or no answers, but these should be viewed as guidelines for employers and their legal counsel to help predetermine how they should structure their hiring policies. The below are the principles from the Human Rights Commission Website (www.hreoc.gov.au):
  • An inherent requirement is something that is ‘essential’ to the job rather than incidental, peripheral, or accidental.


  • The burden is on the employer to determine the inherent requirements for a ‘particular’ position and consider their application to the specific employee prior to the inherent requirements exception being invoked.


  • The inherent requirements should be determined by reference to the specific job to be done and the surrounding context of the position, including the nature of the business and the manner in which the business is conducted.


  • There must be a ‘tight correlation’ between the inherent requirements of the particular job and the individual’s criminal record. There must be more than a ‘logical link’ between the job and the criminal record.


  • The inherent requirements exception will be interpreted strictly so as not to defeat the purpose of the anti-discrimination provisions.
A best practice for employers is to have a sound and legally defensibly hiring policy in place. Consulting with your legal counsel to ensure your organisation is compliant with hiring laws will help you create a consistent and uniform process. It will also aid with understanding and determining what the ‘inherent requirements’ are for your organisation’s positions. Determining those requirements prior to hiring for open jobs will help your recruiters and hiring professionals with their decisions relating to the occurrence of criminal records and applicants.

Background screening can be a crucial tool for employers as they attempt to mitigate risk in the hiring process. Criminal reports are an important element of those checks. Equally important is that employers have a hiring policy in place that follows the laws that oversee the use of criminal reports in the hiring process. Additionally, care should be taken when choosing a screening services provider, to ensure they comply with hiring laws and rely on reputable sources of information, as we do at First Advantage.


Guy Cary
Managing Director – Australia and New Zealand
Telephone: +61 (0) 2 9017 4388
Email: guy.c@fadv.com.au
Website: www.fadv.com/au







Information Content Notice: The foregoing or/and attached information is not offered as legal advice but is instead offered for informational purposes. First Advantage is not a law firm and does not offer legal advice. The foregoing or/and attached information is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances. First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following or/and attached information. Legislative, regulatory and case law developments regularly impact on general research.


  • by rod 9/02/2013 12:57:57 PM

    i have been applying for jobs since 2002 i have applied for 150 companyies and tens of thousands of jobs all within my skill level i work now but still need to get a decent paying job as this is a low paying job i am limited i cannot get a loan as i am not earning enough i am 45 this year it took 8 years to get this job and i will be retired by i can get another out of most of the jobs i apply for they told me it was my record that stopped me even though my record had nothing to do with what i applied for
    it is very hard to find employment now i have a job i may lose it as i fell down stairs and was told they can only keep my job for 12 months after that if i am better i may have to go back to getting knock back after knock back because of my record and have been told by a judge my convictions wont be spent i wasted over $600 back in 2006 trying to get an early spent conviction and told i have to wait until 2016 to try again which is unlikely to be spent i cannot afford over $600 everytime and no result it has been over 10 years since my release from prison maybe the law should state spent convictions after 5 years as we are getting punished more then once i only apply for jobs i know i can do and do not relate to my past convictions i am open with my convictions as i want to be honest up front with employers so i know and employers have told me and continue to tell me it is because i have a criminal conviction verbally i have been to lawyers they said my word againist theirs