Human Rights: On the record: Recruitment (Chapter 5)

On the record

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5 Recruitment

• 5.1 Can an employer ask for criminal record details from a job applicant?
• 5.2 Do job applicants have to disclose their criminal record?
• 5.3 How much is a job applicant required to disclose?
• 5.4 Advertising job vacancies
• 5.5 When to ask for a police check
• 5.6 Who to ask for a police check
• 5.7 Requesting information about a person’s criminal record prior to a police check
• 5.8 Private background checking organisations
• 5.9 Interviews
• 5.10 Assessing a job applicant’s criminal record against the inherent requirements of the job
• 5.11 Feedback to job applicants on recruitment decisions

If an employer has a fair and open process of dealing with the disclosure of criminal records at the outset, many complaints of discrimination can be avoided.

On the one hand, most employers feel that a job applicant has the responsibility to disclose their criminal record honestly in response to a request. On the other hand, people with criminal records are acutely aware that they may be judged adversely because of their criminal record, and not given a fair go. They may decide not to disclose for this reason. In such a sensitive area it prevents many problems if employers create an environment which will encourage an honest and open exchange of information.

It is important to remember that for some jobs, a criminal record will be an irrelevant consideration. An employer does not need to request criminal record information from job applicants if it is irrelevant to the inherent requirements of these jobs. Employers are therefore strongly encouraged to read and consider Section 4 on assessing the inherent requirements of the job before requesting information from job applicants.

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5.1 Can an employer ask for criminal record details from a job applicant?

In some circumstances there is a clear legal requirement that an employee or job applicant should not have a certain criminal record. An employer may be obliged to ask a job applicant for criminal record details in these circumstances. Employers are, however, required to ask an employee to consent to a police check.

See Section 5.5 on when to ask for a police check.

Even where there is no external obligation on an employer to enquire about a person’s criminal record, employers may still ask a person if he or she has a criminal record. However, employers should only ask about a criminal record where there is a connection between the inherent requirements of a particular job and a criminal record.

This principle has been put into legislation in the Northern Territory where requesting information on which unlawful discrimination may be based is not permitted.^[1]

Case example: Requesting information on which unlawful discrimination may be based In Hosking v Fraser, the Northern Territory Anti-Discrimination Commission found that an employment agency should not have sought criminal record information from all applicants for a nursing position because it was not relevant to the inherent requirements of the position.[2] The position was for a remote area nurse situated in an Aboriginal community. Ms Hosking claimed she was asked to consent to a police history check and that, if she did not, her application would not be put on the database of the agency to be forwarded to the employer. The recruitment agency claimed that it was their role to screen out the criminal, inept and incompetent elements so that they do not manage to gain positions of trust. They claimed that the information requested of applicants was essential in the context of Aboriginal customs and realities that these disadvantaged people face on a daily basis. Although the agency did send the application on to the employer, the NT Commission found that the evidence presented by the agency that a police check was an inherent requirement of the position was ‘unconvincing’. The Commission stated: While Mr Fraser’s wish to protect Aboriginal communities from unscrupulous persons is admirable, a general requirement for ‘police checks’ without any reference to the relevance of any check, the relevance of any criminal record and to such matters as spent convictions cannot be considered reasonable. Recruitment forms, and the information they elicit, must be relevant to the duties to be performed, couched in non-discriminatory terms, and based on non-discriminatory practices . As a result, the NT Commission found that the agency sought unnecessary information on which discrimination may be based, contrary to the NT Anti-Discrimination Act.

In addition, an employer should be aware that federal and state privacy laws specify that personal information may only be collected to the extent necessary for a purpose directly related to a function or activity of the collector. It may be that the collection of a person’s entire criminal record is excessive for employment purposes. Although there are exceptions to privacy laws, for example for small business, privacy laws generally prohibit the collection and use of personal information such as criminal records from job applicants in any unnecessary and excessive way. See Section 3.3 for further information on privacy laws.

If an employer asks a job applicant personal questions which are irrelevant to the job, they run the risk of either breaching privacy and anti-discrimination laws, or setting in train misunderstandings which could lead to problems down the track.

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5.2 Do job applicants have to disclose their criminal record?

There is no universal duty on a prospective employee to volunteer anything about his or her prior record, even if those facts are likely to affect the employer’s willingness to employ him or her.^[3]

Case example: Stock v Narrabri Nominees, WA Industrial Relations Commission Mr Stock was employed as a tyre fitter in May 1990. He was not asked about his criminal record in his application. When launching the business the owner placed an advertisement in a local newspaper, including a photograph of the staff. The owner received several phone calls from people who had seen the advertisement and were concerned that he had employed Mr Stock who had been convicted of stealing, amongst other dishonesty offences. The owner dismissed Mr Stock. The Industrial Relations Commissioner stated that: It is clear … that an employee is not under any duty to volunteer facts regarding his personal antecedents even if such facts are likely to affect the employer’s willingness to employ him.[4] The Commissioner found that Mr Stock had been unfairly dismissed.

If there is a requirement under legislation to disclose a criminal record, for example for working with children, then a job applicant must disclose their record. Otherwise, there is no absolute obligation for a job applicant to answer a question about their criminal record even when asked.

However, if an employer asks a reasonable question – for example, a specific question about a criminal history relevant to the job - an employer may be entitled to refuse to hire a person on the basis of failure to answer that reasonable question. Even so, this may still give rise to a complaint of imputed discrimination against the employer if a criminal record was irrelevant to the position.

Sometimes a job applicant thinks that there is no link between the position for which they are applying and their criminal record. In principle a person may be entitled to refuse to answer in this situation.^[5] However, in practice, it is often difficult to determine whether a particular criminal record is relevant to a particular position.

Example of Commission complaint: Failure to disclose a conviction on the basis that it seemed irrelevant Summary of complaint: The complainant who obtained a position and commenced training as a security officer in a detention centre in South Australia alleged that he was dismissed from his position due to his criminal record. The application form asked whether the applicant had ever been charged, had pleaded guilty, been convicted of an offence or had an offence proved. The complainant had a conviction for possession of marijuana 15 years earlier, which he did not declare as he did not think that it was relevant. [6] His employment was conditional on a criminal record check, which revealed the conviction. Response: The employer argued that the complainant failed to gain employment because he provided false information and because he failed to satisfy the inherent requirements of the position due to his criminal record. Outcome: The Commission declined the complaint on the basis that it was lacking in substance. The Commission found that the decision not to employ the complainant was made because of his failure to truthfully answer the question, and in any event, it was an inherent requirement of the particular position to have no criminal record.

As the last example illustrates, some employers decide not to employ an applicant who has failed to disclose a criminal record, not because of the nature of the record, but because an inherent requirement of the job is honesty and trustworthiness, and the failure to make a disclosure is treated as dishonesty. The Commission receives a number of complaints by persons who allege they have been not employed or later dismissed on the basis of criminal record, while the respondent has argued that the reason for the dismissal was dishonesty in failing to disclose the criminal record.

The Commission may decline a complaint if it finds that the employer’s conduct was based on dishonesty only, not the actual criminal record.

An employer could explain to job applicants, if briefly, why certain convictions are relevant to the job and that a failure to make a full and frank disclosure may be treated as evidence of untrustworthiness. This helps to minimise the possibility of disagreements which could lead to claims of discrimination.

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5.3 How much is a job applicant required to disclose?

If a criminal record is relevant to a position, and an employee decides to volunteer information or is asked, he or she still may not have to disclose the complete criminal record. Exactly what information they are required to disclose depends on a variety of circumstances.

Generally, where there has been a finding of guilt but no conviction is recorded (for example when the offender is placed on a good behaviour bond but no conviction is recorded), and depending on what information is requested from the employer, a job applicant may not need to disclose this guilty finding. The situation might change if an employer specifically asks about ‘findings of guilt, with or without conviction’.

In addition, in most cases there is no requirement to disclose a spent conviction. However, some kinds of employment, for example employment where people will be working with children, are exempt from spent convictions legislation. Further, there are some offences that never become spent, for example sex offences in some jurisdictions. See Section 3.2 on spent convictions laws.

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5.4 Advertising job vacancies

If an employer decides that a criminal record is relevant to a particular job, an employer should state this requirement clearly in job advertisements, information sent out to job applicants and recruitment briefs to agencies.

Even if a criminal record is relevant, the advertisement and job information should also state, wherever possible, that the employer does not automatically bar people with a criminal record from applying (unless there is a particular requirement to do so under law). This encourages an open exchange of information at the early stages of the recruitment process rather than down the track. It also means that an applicant can decide whether or not to apply for the position.

If an employer provides job information to job applicants, it may be useful for an employer to include a brief explanation of why certain offences may be relevant to the job.

Although the AHRC Act does not specifically prohibit discriminatory advertising with regard to criminal records, it is possible that a complaint of discrimination could be lodged because of a job advertisement. For example, a job advertisement that stated that job applicants, who are otherwise qualified, should not have a criminal record may constitute an impairment of equality of opportunity if it prevented a person from making a job application.

Example of a statement in a job advertisement which notifies job applicants about a requirement for a police check All final applicants for this position will be asked to consent to a criminal record check. Please note that people with criminal records are not automatically barred from applying for this position. Each application will be considered on its merits.

An advertisement could also state that more information can be sought on a confidential basis. In this case, a separate contact name should be given to ensure confidentiality. This contact person should not be involved in the selection process.

If an employer has an exemption from spent convictions laws, this should also be clearly stated on the advertisement.

Example of a statement in a job advertisement notifying job applicants of spent conviction exclusion All final applicants for this position will be asked to consent to a criminal record check. Please note that this position is exempt from the operation of spent convictions laws and all offences must be declared. However, all applications will be considered on their merits.

 

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5.5 When to ask for a criminal record check

For most jobs, a criminal record check should be requested only from short-listed applicants or from those invited to interview. This minimises:

All applicants should be warned that their employment is dependent on an assessment of the results of their criminal record check. This should be stated clearly on the job application form and explained carefully in interview.

Ideally, an employer should not make a final job offer before receiving the results of a police check. If an employee commences employment and training, and a criminal record comes back with a relevant conviction, it can cause undue distress for employees and wasted employer resources.

However, police checks may take a few days, or even weeks, to return to the employer. This is a problem when a position needs to be filled quickly. As a result, in certain cases an employer may need to start the process of obtaining criminal record information earlier in the process. This would only be the case where there was an urgent need to employ someone.

If an employer decides to hire a person prior to the criminal record check, the employer should take steps to clearly inform the new employee that their employment is conditional. This is the case even if the new employee has not disclosed any convictions prior to a police check.

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5.6 Who to ask for a police check

Police checks are available from:

• Australian police agencies
• CrimTrac.

Australian police agencies conduct a national police check on behalf of individuals and organisations. Individuals and organisations who request a police check from an Australian police agency will be issued with a National Police Certificate.

CrimTrac processes national police checks for police and organisations which have obtained accreditation status. CrimTrac does not process police checks for individuals or issue National Police Certificates. CrimTrac coordinates the processing of check requests submitted by police or accredited organisations and returns the results to the police or accredited organisation.  

All police checks must be undertaken with the written consent of the person being checked, unless the check is mandated by relevant legislation.

Police agencies and CrimTrac have standard application/consent forms for requesting a police check, which include written consent and proof of identity.

Contact details for Australian police agencies and CrimTrac are provided at the back of these Guidelines.

What is disclosed in a police check?

A police check either indicates that no records are held or contains information obtained from police agencies that is able to be disclosed. What information can be disclosed is determined by each police agency based on legislation and information release policies.

A police check usually includes:

• court appearances
• court convictions, including any penalty or sentence
• findings of guilt with no conviction
• good behaviour bonds or other court orders
• charges
• matters awaiting court hearing.

It is not possible to limit the information requested to specific offences.

Spent convictions are not usually included, unless an exemption applies under the relevant legislation or information release policy (see section on spent convictions law). Generally, the police agency that is managing the check will apply its spent convictions legislation or information release policy to convictions recorded within that jurisdiction to determine which convictions can be disclosed. The rules regulating spent convictions differ in each jurisdiction.

Police checks conducted by Australian police agencies or CrimTrac can only be processed with the written consent of the individual concerned, unless the check is mandated by legislation.

It is always best to double-check any information on police checks with the job applicant or employee. For example, there may be a mistake in the identity of the person, or a conviction may be recorded when it should not have been.

Employers should ensure that the information about a person’s police check and the police check itself are stored securely and is not disclosed to any other party without the consent of the individual concerned. 

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5.7 Requesting information about a person’s criminal record prior to a police check

In general, it is not recommended that employers directly request criminal record information from job applicants prior to a police check.

If an employer asks a job applicant to disclose a criminal record in an application form, it means that an employer is collecting sensitive information from people who may or may not be shortlisted for the job, increasing the risk of breaches of privacy, and making them susceptible to complaints of criminal record discrimination. A police check will reveal the person’s criminal record more accurately, explaining the criminal record in statutory terms rather than the common language of the applicant.

Of course, some applicants will decide to volunteer their criminal record at an earlier stage of the process.

If an employer does request information about a job applicant’s criminal record prior to a police check, an employer should only ask relevant questions, and put in place processes to respect the privacy of the applicant. This encourages a free exchange of information.

For example, when framing questions, an employer should consider the relevance of:

• certain types of offences

• adult and juvenile offences

• spent convictions

• the differences between charges, findings of guilt with no-conviction and convictions.

The job applicant should be asked to submit their criminal record information on a separate sheet of paper to the main part of the job application, to ensure confidentiality. A statement reassuring the applicant about confidentiality should be included.

Examples of questions asking for disclosure from job applicants Note that these examples have applied Commonwealth spent convictions law, where a conviction can only become spent if the sentence imposed was 30 months of imprisonment or less. These are examples only. Employers should always tailor their questions to meet the specific needs of the particular employment area and position. General questions asking for disclosure of non-spent convictions only 1.Do you have any convictions which were imposed as an adult and which are less than 10 years old? If yes, please list the offence, date of conviction, and sentence received for each offence. 2.Do you have any convictions which were imposed as a juvenile and which are less than 5 years old? If yes, please list the offence, date of conviction, and sentence received for each offence. 3. Do you have any convictions which are over 10 years old (or 5 years for juvenile convictions), where the sentence imposed was greater than 30 months imprisonment? If yes, provide details. Question where the employer has a complete exclusion from Commonwealth spent convictions laws Under Statutory Rule No 227 of 1990, Schedule 4 of the Crimes Regulations, this authority has been granted a complete exclusion from the application of Division 3 of Part VIIC of the Crimes Act 1914 for the purpose of assessing an applicant's suitability for [name the relevant position]. You are therefore required to provide details of all criminal convictions or findings of guilt recorded against you. Series of structured questions where there is a need to screen for certain convictions only It is an inherent requirement of the position of financial officer to be responsible for large amounts of money and to administer financial records. All previous convictions involving fraud or dishonesty are considered relevant to the position, although all applications will be assessed on a case-by-case basis. 1.Do you have any convictions for fraud or theft which were imposed as an adult and are less than 10 years old? If yes, provide details. 2.Do you have any juvenile convictions for fraud or theft which are less than 5 years old? If yes, provide details. 3.Do you have any convictions for fraud or theft which are over 10 years old (or 5 years for juvenile convictions), where the sentence imposed was greater than 30 months imprisonment? If yes, provide details.

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5.8 Private background checking organisations

There are a number of private background checking organisations which provide employers with criminal record details of individuals for a fee. The information is usually gained from court records or newspaper reports. These organisations are unable to obtain criminal history information through CrimTrac or police services.

Some private background checking organisations operate internet sites, where checks can be requested without the consent of the individual concerned.  These organisations are covered by the Privacy Act. As they trade in personal information, they are not likely to be included under the small business exemption (see Section 6D(4)(c) of the Privacy Act). The employee record exemption is also unlikely to apply. Under the National Privacy Principles, organisations generally should not be collecting and disclosing sensitive information (i.e. criminal record information) without the consent of the individual concerned. See Appendix 2.

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5.9 Interviews

If a short-listed job applicant has already disclosed a relevant conviction to the employer, the selection interview provides an important opportunity to discuss the details of the person’s conviction. However, it is advisable that employers not use the interview process to initiate questions about an applicant’s criminal record without prior warning. Applicants should be given the chance to prepare themselves for questions regarding their criminal history, if the record is considered relevant. 

An employer should not ask a job applicant a question about a criminal record based on the appearance or other characteristics of the applicant. This could legally expose employers to claims of discrimination on the basis of imputed criminal record, or claims of discrimination on other grounds such as race.

It is possible that a job applicant voluntarily discloses their criminal record for the first time at the interview. In this case, an employer should allow the applicant to explain their offence and the reasons why they are raising it in the interview. An employer may suggest that the applicant return for a second interview when the employer has had a chance to consider the relevance of the criminal record and ask further questions.

Questions about a job applicant’s criminal record should not require an applicant to disclose a spent conviction or any conviction or offence which is irrelevant to the job in question. Examples of broad ranging questions which may lead an applicant to reveal an irrelevant piece of information, such as a spent conviction, include

• Have you ever been in trouble with the police?
• Have you ever been to court?
• Have you ever been charged with a criminal offence?

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5.10 Assessing a job applicant’s criminal record against the inherent requirements of the job

In some cases, the connection between the criminal record and the job will be clear enough for the employer to decide easily on the suitability of the applicant for the job. For example, the employment of a person with a particular criminal record may be prohibited by legislation.

However, in most cases it will be unclear to the employer simply on the basis of the results of a police check alone whether or not the conviction or offence is relevant to the inherent requirements of the job. The result of a police check may include information which an employer may not fully understand, and may also include errors. Police checks also only include very basic information and do not include any details about the circumstances of the offence.

An employer will generally need to discuss the relevance of the criminal record with the job applicant, or invite them to provide further information, in order to assess whether the person can meet the inherent requirements of the job.

A discussion with the job applicant may take place in the standard interview process, as discussed above. The employer may also wish to provide the job applicant with the opportunity to discuss the criminal record with one person only, rather than with an entire interview panel. An employer may also provide the questions he or she wishes to discuss in writing prior to the meeting.

The type of information which an employer may need to consider when assessing the relevance of a person’s criminal record includes:

• the seriousness of the conviction or offence and its relevance to the job in question
• whether in relation to the offence there was a finding of guilt but without conviction, which indicates a less serious view of the offence by the courts
• the age of the applicant when the offences occurred
• the length of time since the offence occurred
• whether the applicant has a pattern of offences
• the circumstances in which the offence took place, for example if it was an offence that took place in a work, domestic or personal context
• whether the applicant’s circumstances have changed since the offence was committed (for example, past drug use)
• whether the offence has been decriminalised by Parliament or it was an offence overseas but not in Australia
• the attitude of the job applicant to their previous offending behaviour
• references from people who know about the offending history.

This process is also relevant when considering the criminal record of a current employee against the requirements of their current position, promotion or transfer.

The more information available to the employer, the greater the likelihood that an employer can exercise reasonable judgment in assessing the connection between the criminal record and the inherent requirements of the job.

Given the assessment process described above, it is likely that an employer will scrutinise such an applicant more heavily than other applicants. Employers should be aware that this extra scrutiny may place added pressures on such applicants and employers should do their best to make the process as open as possible.

 Figure 1: Steps for assessing the inherent requirements of the position against a particular criminal record at the recruitment stage

 

 

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5.11 Feedback to job applicants on recruitment decisions

Once an employer has made a decision about a job applicant, an employer should give the person with a criminal record some feedback about the process.

If the job applicant is successful, he or she may be worried about whether the criminal record will be kept confidential. An employer should provide an assurance to the new employee that information about their convictions will not be disclosed to colleagues.

If the job applicant is unsuccessful, the employer should, where possible, explain the reasons for the rejection. Standard letters of rejection, however polite, reinforce the assumption of many people with a criminal record that disclosure leads to adverse consequences.

An employer could explain the following possible factors:

• that he or she was rejected because a conviction was considered relevant, and why

• constructive feedback on the job applicant’s handling of the issue in interview

• any other reasons why the applicant was unsuccessful.

Details about the applicant’s convictions should be kept only as long as necessary for the selection process.

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Notes

^[1] Anti-Discrimination Act 1992 (NT), s26.

^[2] Hosking v Fraser Central Recruiting (1996) EOC 92-859.

^[3] Andrew Gordon Stock v Narrabri Nominees Pty Ltd trading as Tyre Mart Bunbury, Western Australian Industrial Relations Commission (16 August 1990). See also S Selleck citing Bell v Lever Brothers Ltd [1932] AC 161; Concut Pty Ltd v Worrell (2000) 176 ALR 693; Gordon & Gotch(Australasia) Ltd v Cox (1923) 31 CLR 370; Hands v Simpson Fawcett & Co Ltd (1928) 44 TLR 295. However, this conclusion is not entirely free of doubt. Recent developments in the implied duties of good faith and mutual trust and confidence may lead to fresh consideration of this conclusion.

^[4] Stock v Narrabri Nominees, Western Australian Industrial Relations Commission, No.1122 of 1990, citing Cambourn v A.E. Leer and B.A. Leer (1979) AR (NSW) 523.

^[5] S Selleck, p4.

^[6] A company employing security officers would usually be exempt from spent convictions schemes.

^[7] Fitzroy Legal Service and Job Watch, Submission to Discussion Paper on Discrimination in Employment on the basis of Criminal Record, Submission No. 89, p17.

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