A tribunal recently found an employee had been discriminated against for her “irrelevant” criminal record. What can HR learn from this case about managing candidates and employees with a criminal history?
In a recent case, an HR manager was criticised by a tribunal for “[leaping] into punitive action” upon learning of an employee’s criminal record.
After discovering an employee had been convicted several years prior for violence and drug-related offences, the HR manager in question immediately restricted the employee’s access to company systems and placed her on leave, despite receiving limited information about the offences.
The tribunal found the HR manager had failed to consider the relevance of the criminal record and the employee’s specific circumstances, and had therefore directly discriminated against the employee.
The ruling on this case is a valuable reminder to HR of their legal and ethical obligations around the treatment of employees and job seekers with a criminal background.
By embracing a more nuanced approach to this cohort, HR can not only protect their organisations from litigation, but also create fairer and more transparent cultures, says Susan Sadler FCPHR, Founder and CEO of Red Wagon Workplace Solutions and member of AHRI’s IR/ER Advisory panel.
The case in question
The tribunal’s criticism of the employer in this case centred around an HR manager’s “knee-jerk” response to learning of an existing employee’s criminal record.
The issue arose when, in April last year, the ACT Integrity Commission reached out to the employer to notify them of the employee’s convictions, which occurred “as far back as 2017 but as recent as 2020”, as they were concerned that the worker had not disclosed the offences.
In fact, the employee had clearly disclosed her criminal history at the time of applying to her job and had discussed it with the organisation’s head of HR, who agreed that she was able to continue her employment despite her past offences.
However, at the time when the Integrity Commission contacted the organisation, the head of HR was on leave. As a result, the acting HR head received the notification and, in response, immediately restricted her access to systems, placed her on paid leave and declined to extend her employment contract.
The worker reached out to the acting HR head asking her to reconsider based on her previously agreed arrangement with the absent head of HR, and provided further information to prove her capacity to work, including notes from her psychiatrist. The acting HR head refused to reconsider.
“It’s not the criminal record itself that’s the issue. It’s the substance of what’s in the criminal record.” – Susan Sadler, Founder and CEO of Red Wagon Workplace Solutions
In its ruling, the tribunal acknowledged that the employee had been transparent and honest in her disclosure of her past offences, and had provided context to the head of HR by explaining that she had previously been a victim of domestic violence, which she said had contributed to her past convictions.
It said that the head of HR had also behaved appropriately in seeking further information, considering the employee’s specific circumstances and allowing her to continue in her employment.
It found that the acting HR head had “leapt into punitive action… without speaking to [the head of HR] or examining the past file”, and had therefore directly discriminated against the worker based on an “irrelevant” criminal record.
“This case gives a perfect example of both HR doing it right and HR doing really, really wrong,” says Sadler.
“[The head of HR] asked all the right questions and sought to understand. And even if he made a decision that he felt the criminal record was relevant for some reason, and she couldn’t be employed or reemployed, he’s done the right thing by getting the extra information rather than just going, ‘You’ve got a criminal record, and that’s it.’
“Whereas, when [the acting HR head] received some information, but not the full information, she didn’t seek to understand anything further. She had no reason to assume that something bad could have happened, or that there was dishonest conduct from the employee.”
The case has progressed to a directions hearing for further action.
Managing candidates with criminal records
Discrimination based on criminal history is often most prevalent at the recruitment stage. In fact, AHRI’s March 2024 Quarterly Work Outlook report found that one in three employers would exclude candidates with a criminal history from their recruitment processes.
Of course, it’s crucial for HR to have robust criminal reference checks embedded into the recruitment process as a point of compliance and to keep employees safe. However, in instances where an employee’s criminal history is not relevant to the role, or a thorough risk assessment shows that the employee poses no threat to your organisation, then refusal of an application could open up your organisation to discrimination claims.
According to the Australian Human Rights Commission, an employer can only refuse to hire a person based on their criminal history if their offences mean they are unable to perform the “inherent requirements” of the job.
For example, a history of fraud or theft might be considered relevant to a role in the finance sector, and drug offences might provide reasonable grounds to refuse an application for a healthcare role. Child-related offences will naturally be considered relevant to education or care roles.
Employers will have to establish this relevance if a case goes to the Fair Work Commission or a tribunal, such as in the case outlined above.
Every Australian state or territory also has laws in place to limit the release or consideration of certain older offences – or ‘spent convictions’ – which generally won’t be disclosed on a National Police Certificate (NPC).
The timeframe for convictions to be considered ‘spent’ is usually 10 years for offences committed by adults, and five years for offences by minors.
There are exceptions to these rules in many cases; for instance, it’s likely that older convictions are included on an NPC when that person is working or applying to work with children, older people and people with disability.
Learn more about individual state and territory laws on spent convictions here.
Typically, an applicant or employee is not obliged to voluntarily disclose their prior record if they aren’t specifically asked to do so. In some cases, however, legislation or job-specific circumstances may require disclosure, such as when the job involves working with vulnerable cohorts.
However, an employer can generally ask a person if they have a criminal record, and may be entitled to refuse to hire a person because they failed to answer a reasonable question or gave a dishonest answer. When an employee does answer a question about a criminal record, the response should be truthful and complete.
Assessing the relevance of a criminal record
For HR and recruitment professionals, Sadler stresses that there is usually a degree of nuance to assessing whether or not criminal records are relevant to a given role.
“It’s not the criminal record itself that’s the issue. It’s the substance of what’s in the criminal record,” she says.
Factors that employers should consider include when the offences happened, how severe they were, how the employee’s personal circumstances contributed to them and whether the employee disclosed them at the application stage, she says.
Following this, they will be able to make a well-informed and justified decision on whether or not the candidate can proceed.
“Inclusivity breaks cycles. We all know that the longer you are out of work, the more difficult it is for you to regain employment.” – Susan Sadler, Founder and CEO of Red Wagon Workplace Solutions
If a decision is made that the criminal record is not relevant, HR should be careful about who they inform of the candidate’s past offences.
“I think recruiters or talent acquisition [professionals] often think all of that information is relevant to provide to the decision-maker. And what I’ve found is that the decision-maker, particularly if they’re not in HR, might not understand and might be biased or prejudiced by that information, when it is actually irrelevant,” says Sadler.
“I would love to see recruiters have a better understanding and be given more responsibility to [not only] get that information, but filter it out throughout the process and say, ‘You’ve passed that level of check, and I am an appropriately qualified person to say that.’ Then, what the decision-maker ends up with is the strong and concentrated information that is relevant for them to make a decision.”
Striking a balance between inclusivity and risk management
Making snap judgements about employees with criminal records can be detrimental not only to candidates, but to employers themselves, says Sadler.
A tight talent market means excluding candidates with irrelevant past offences could exacerbate the skills shortages employers are currently grappling with. What’s more, a more inclusive approach to this cohort could also have a much broader social impact.
“Inclusivity breaks cycles. We all know that the longer you are out of work, the more difficult it is for you to regain employment,” says Sadler.
“If we are more inclusive, and we take a trauma-informed approach, [we can] understand the circumstances and then see what we can do to work with someone who could otherwise be an excellent employee.”
Of course, there will often be grey areas around where an employee’s criminal record does create risk or impede their ability to perform their role. This puts HR in the difficult position of having to balance being inclusive with avoiding risk.
In these instances, it’s best to make an informed decision based on expert advice, research and any precedence you can find, rather than a “knee-jerk” reaction, says Sadler.
One factor that should always be considered in measuring risk is the employee’s accountability for their past offences, she adds.
“For example, in this case, [the head of HR] was satisfied that [the employee] was honest, that she showed contrition and remorse and that she’d taken adequate steps to ensure that those things wouldn’t reoccur.
“That seems to me to be a really good way of approaching not only criminal records, but also any sort of employee misdemeanour.”
