Checking an employee or prospective employee’s criminal history is something which many employers do. However, some employers may be putting their businesses at risk by doing so.
Below are answers to a few commonly asked questions relating to criminal record checks and employment.
Can I request a criminal record check from an employee or prospective employee?
If a criminal record check is relevant to the inherent requirements of the role or job being applied for (or occupied), employers can request a criminal record check. An “inherent requirement” of a role is a requirement which, if removed from the role, would make it a different role altogether.
An “inherent requirement” is an essential requirement. It is not a requirement which is peripheral or non-essential.
It is important to note that criminal record checks can only be obtained with the employee/prospective employee’s consent. In obtaining consent, employers should always explain to the employee/prospective employee why the check is necessary (i.e. how it goes to the capacity of the employee to perform the job, having regard to the role and the employer’s business).
Can I refuse to employ, or terminate an employee's employment, if they have a criminal record?
Refusing to employ or terminating the employment of persons with a criminal record will generally breach anti-discrimination legislation unless the person’s criminal record means that s/he is unable to perform the inherent requirements of the specific role.
In some industries and occupations, employers can reasonably refuse to give certain roles to persons with relevant criminal histories. For instance, financial services/institutions may be able to reasonably refuse to appoint a person with a criminal history involving fraud or deception. Indeed, in some occupations employers are legally prevented from hiring persons with certain types of criminal histories – whether that be directly prevented (for instance, teachers with histories of child sex crimes) or indirectly in that the person is unable to obtain a necessary permit or licence due to his/her criminal history (such as in the security or gaming industries).
But, where the law does not exclude it, if an employee has a criminal history which does not prevent him/her from carrying out the inherent requirements of his/her role (for instance, a strictly clerical employee with traffic convictions) it will generally be unlawful and in breach of anti-discrimination legislation to either refuse them employment or to terminate their employment because of their criminal history.
What is a "spent" conviction?
In Australia, legislation prohibits employers from refusing to employ prospective employees on grounds that they have a “spent conviction”. A “spent” conviction is generally a conviction which no longer forms part of a person’s publicly accessible criminal record, because a specific period of time has passed with no further convictions having been recorded. “Spent conviction” legislation requires employers to discard criminal convictions, and permits employees/prospective employees to not disclose or answer questions about their criminal history, after a certain number of years. The number of years varies from jurisdiction to jurisdiction and in certain other circumstances.
How must I treat the information obtained from a criminal record check?
Where an employer obtains information in relation to an employee, or prospective employee’s criminal record, it is important that the employer takes reasonable steps to protect the information from misuse, loss, unauthorised access, modification and disclosure.
For advice or assistance in understanding your obligations or risk, please contact the team here at Emplawyer.
