Criminal records and criminal history of an employee can be problematic for Employers to deal with. This issue comes up usually at two (2) main times:
- Providing or in the process of providing an offer of employment then rescinding this offer due to a criminal record or history
- A criminal history or record is either disclosed or found out by the employer during the course of employment
Rescinding Offers
In the current climate where recruitment of employees is difficult, hiring quickly is becoming the norm.
Once an offer has been made and accepted by an employee it may become a contractual relationship and with that all the necessary legal obligations.
Reference checks and even just general “google” checks can slow down the process but it also provides an understanding of the employee. If an offer is made before a proper background/criminal history check is undertaken there are chances that the checks may reveal some relevant information which may lead to an employer deciding to rescind the offer.
Employers must be careful when doing this as some circumstances may give rise to claims of:
- Misrepresentation;
- Discrimination and/or;
- breach of contract.
The Australian Human Rights Commission Regulations 2019 (Cth) came into effect in October 2019 and provided amendment to the definition of discrimination for the purposes of section 3(1) of the Act.
Previously an Employer was able to “discriminate” if the criminal record meant that the prospective employee will be unable to perform the inherent requirements of a particular role. The regulations have clarified that employers are now prohibited from using “irrelevant” (Regulation 6 (a)(iii)) Criminal history records to rescind or decline an offer of employment.
What is “irrelevant” will come down to some of the following considerations:
- the type of role
- the industry
- the type of criminal record or charge
- the effect on the employment
- the effect on the employer
As an example health and aged care employers will be able to consider criminal charges around drug use much more relevantly than a manufacturing or professional services employer.
A Relevant Case To Consider Is BE V Suncorp Group Ltd [2018] AusHRC 121.
The matter was referred to the AHRC. The employee, Mr BE was provided with a conditional offer of employment pending the outcome of his criminal history check.
The criminal history check returned the following charges:
- Failure to comply with reporting obligations – $1,000 fine.
- Use of a carriage service to access Child Pornography – 12 months imprisonment – released on $10,000 bond for two years. Pay $5,000 to charity. Further $5,000 fine.
Upon receipt of this information, Suncorp rescinded the offer of employment. They did not inform him of the reason for this. When the complaint was filed Suncorp responded stating their concerns for his character to sufficiently undertake his obligations in the role.
The commission stated that although his criminal history was serious it is irrelevant and cannot be relied on to argue that he would not otherwise fulfil the inherent requirements of the job to be trustworthy and of good character.
Even with the negative finding Suncorp also refuted the commissioner’s findings and refused to pay any amounts to the employee.
Putting aside the AHRC’s lack of ability to enforce financial penalties the decision itself is still one that an employer such as Suncorp may not want on the record.
In saying this, whether you agree or not, the AHRC have made it clear that criminal charges and history is not enough to impute someone’s bad character.
So What Can Employers Do?
One method some Employers are utilising is to implement a pre-employment screening program which includes the question of:
- Have you ever been charged but not convicted of a criminal offence?
This pre-employment screening document is put together in the form of a statutory declaration which then makes it clear that if any questions were answered dishonestly this would be subject to serious misconduct.
A contract of employment could be relied upon to set out very clearly that a criminal charge or conviction could lead to disciplinary action.
Another basic method is to ensure that offers of employment are not made until checks are undertaken. This may be difficult in the current race for talent – however you also don’t want to be in a position to have to rescind an offer as well.
In Part 2 we will discuss the legal implications for an employer if a criminal record is disclosed or found by an employer during the course of employment.
This article was originally published on NB Lawyers for Employers here and was republished with permission.
Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem.