Human Rights: On the record: Dismissal (Chapter 7)

On the record

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7 Dismissal

As discussed in Section 6.3, there may be circumstances where an employer decides to dismiss an employee on the basis of criminal record.

However, this step should never be taken lightly and should constitute a last resort for the employer after a consideration of all the issues. This will involve a consideration of an employer’s legal responsibilities under anti-discrimination law and unfair dismissal laws (see Section 3).

An employer should only dismiss an employee on the basis of criminal record if the criminal record or failure to disclose is relevant to the inherent requirements of the job.

Section 4 sets out the factors which should be considered and the steps which should be followed when assessing the inherent requirements of a job and the relevance of an individual’s criminal record against those requirements.

In most cases, an employer should not assess a person’s criminal record as relevant without considering a range of factors including the nature and background of the offence. In order to assess this accurately, an employer will generally need to provide the employee with an opportunity, prior to a final decision, to discuss the criminal record and provide any material relevant to an assessment of the employee’s suitability for the position. A final decision should not take place without providing this opportunity to the employee.

If there are no alternatives to dismissal of an employee, an employer should treat the dismissed employee with dignity and respect their privacy. This may include:

• explaining the reasons for the decision in full

• providing all entitlements on termination to pay and leave as required

• providing references where appropriate

• ensuring that information about the person’s criminal record, including information relating to the dismissal, are kept confidential

• ensuring that relevant privacy, anti-discrimination and unfair dismissal laws are complied with.

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