What can an employer do if an employee has a criminal record?

Employer Obligations: Police Checks

The Australian Human Rights Commission Act 1986 (Cth) applies to all employers and employees as well as prospective employees – permanent or casual. The Act includes discrimination on the basis of a ‘criminal record’ where an employee is dismissed from employment or denied certain opportunities due to a criminal record. Further, a job applicant may be discriminated against through being denied the job because of their criminal record.

The Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) gives power to the Australian Human Rights Commission (AHRC) to hear complaints about discrimination in employment or occupation on the basis of criminal record.

However, the AHRC only has the power to conciliate with parties where there is a complaint of discrimination. Where the parties are unable to settle on an agreement, the AHRC has no power to impose one on them (note below that specific powers exist under state or territory legislation in Tasmania and the Northern Territory). If the AHRC is satisfied that discrimination has occurred, it is limited to preparing a report and making recommendations to the Attorney-General for tabling in Parliament.

Inherent Requirements

A criminal record may only be taken into account where it means the person cannot carry out the inherent requirements of the job. This conduct does not constitute discrimination under the AHRC Act. Issues to consider are: what is the nature of the crime on record? Does that crime impede or affect the performance of the essential aspects of the job? E.g. a driving offence would be irrelevant to the performance of someone employed as a finance manager.

The responsibility of deciding what is an inherent requirement of the job falls on the employer, but it must be able to be justified objectively. The process involves identifying the essential tasks and requirements of the job, assessing whether a criminal record would be relevant to these tasks, and then assessing an individual criminal record against the inherent requirements of the job. This is to be done on a case-by-case basis.

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

State and Territory laws

As well as this, there are state and territory anti-discrimination laws employers also have to comply with. Under the Northern Territory’s Anti-Discrimination Act 1992 section 4, it is unlawful to discriminate against a person on the grounds of an ‘irrelevant criminal record’. However, there is an exemption to this if the work principally involves the care, instruction or supervision of children or vulnerable people (section 37). This same provision is also present in the Tasmanian Anti-Discrimination Act 1998. In other states, those who wish to make a discrimination claim on the grounds of criminal record must rely on the AHRC Act only.

Spent Convictions laws

All states and territories except Victoria, as well as the Commonwealth, have statutory spent convictions schemes whereby discrimination on the basis of spent convictions is unlawful, although they vary considerably. Spent convictions laws allow the criminal records of offenders to be amended after a certain period of time, i.e. ‘wiping the slate clean’. Spent convictions schemes mostly apply to offences with shorter custodial sentences or lesser penalties. Spent conviction provisions cannot be accessed by people sentenced for serious crimes or for long periods of imprisonment.

For example, the following conditions allow someone to access the Australian Federal Police spent convictions scheme:

  • It has been 10 years from the date of the conviction (or 5 years for juvenile offenders)
  • The individual was not sentenced to imprisonment for more than 30 months
  • The individual has not re-offended during the 10 year (5 years for juvenile offenders) waiting period
  • A statutory or regulatory exclusion does not apply

Under spent conviction laws, employees or job applicants do not have to disclose information about their spent convictions to anyone, even if they are asked about it- unless there is a special exemption or requirement under another law (i.e. sex or violence offences are required to be disclosed when working with children). Police will not release information to an employer about a spent conviction on a police check unless there is the exemption under relevant spent conviction legislation.

If an employer finds out about a spent conviction by word-of-mouth (or some other means) they are prohibited from considering that spent conviction when making an employment decision.

Making decisions about actual or prospective employees on the basis of criminal record

When assessing the application of a person with a criminal record, questions an employer may need to address might include:

1.  Has the applicant or employee been informed about the possible relevance of criminal record?

2.  Does the organisation have clear procedures for making decisions about applicants with a criminal record? For example, who makes the decision and when is it made?

3.  Does the applicant or employee’s specific criminal record mean that he or she cannot fulfil the inherent requirements of the particular job?

4.  Has the applicant or employee been given the opportunity to explain the circumstances surrounding any criminal record?

5.  Is there an avenue for the employee to appeal the decision?

For more info, see the Australian Human Rights Commission Guidelines for the prevention of discrimination in employment on the basis of criminal record.

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