Hiring ex-offenders: a case for discrimination?

by Iain Hopkins06 Oct 2011

Criminal background checks are an integral aspect of the recruitment process for many organisations, yet many recruiters remain unsure of their legal rights and responsibilities when presented with a candidate who has a criminal history.

First Advantage executive vice president for Asia Pacific, Wayne Tollemache, said recruitment decisions should only be based on 'disclosable court outcomes'.

"If you are requesting candidates to disclose criminal records as part of the recruitment process, it is possible that they will inadvertently reveal events that would not be considered disclosable court records."

Tollemache said that asking the candidate to provide their criminal history may put recruiters at risk of making a decision based on information they are not legally entitled to consider as part of the recruitment process.

The Federal Human Rights and Equal Opportunities Commission (HREOC) said they have received complaints claiming discrimination on the basis of having a criminal record, and there are laws in place which have made blanket policies of this nature illegal.

The commission's charter states: "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."

Tollemache outlined key points for employers to consider when a candidate has a criminal record, namely:

  1. Conduct a recognised police check. Without supporting the process with a check through a recognised police authority, you are at risk of making a decision on information that you are not legally able to consider as part of the recruitment process eg spent convictions.  
  2. Discuss the outcome with the candidate and provide them with an opportunity to respond. It is important that decisions are not based entirely on an outcome presented in a criminal record. There is always the potential that a record presented by a police authority does not relate the candidate in question. They may have been the victim of identity fraud or they may have identical details to an individual with a criminal record. In rare cases, the police authorities may have made an error in disclosing the information to you.
  3. Consider the outcome in relation to the inherent requirements of the position that they are applying for. The severity, nature and frequency of convictions should be considered in respect of the inherent requirements of the role that the candidate has applied to be considered for. A criminal record may not automatically disqualify a candidate if the offence was minor, it was not repeated and it will have no impact on the candidate's ability to perform the particular role.
  4. Make a record of the decision making process. Protect yourself with a record of the decisions that you have made as part of the recruitment process, including consultations you have held with the candidate. It is important that you do not record details of the convictions in your permanent records as there are legal obligations to delete this information within three months.
  5. Provide the candidate with an opportunity to apply for other roles where applicable. Where the candidate has been unsuccessful in their application for a particular role, encourage their attempts to obtain other roles that may be more suitable to their background. Remember that convictions may become spent over time. In this scenario, what was once disclosed to you may not be considered as part of the recruitment process at a future date.

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