Should criminal history remain in the past when hiring? - HRM

By Alan J. McDonald

Australians with a criminal record often face barriers when it comes to finding a job. HRM investigates the issue in light of the recent Australian Human Rights Commission (AHRC) finding of discrimination against Suncorp.

In 2015, a man – referred to as Mr BE – applied for a job with financial services giant Suncorp as a part-time, home-based claims assistant. During the initial interview stages he failed to disclose his prior criminal record, which included a conviction for possessing child pornography. When this information finally came to light, Suncorp declined to hire him as he’d been dishonest in the application process and considered him not of sufficient character to work for the company.

The AHRC recommended Suncorp pay $2,500 in compensation to Mr BE for causing “hurt, humiliation and distress’’ by refusing to hire him. The decision has caused a stir, and it’s caught the attention of the Attorney-General, Christian Porter, who has suggested that this process needs to be reformed.

Suncorp has declined to pay the fine, sticking by its initial decision, which has opened up debate within the HR community and beyond; is a criminal record reason enough to refuse to hire someone? Employment law specialists McDonald Murholme, offers a legal perspective on the matter.

What are an employer’s legal obligations in this scenario?

Federal legislation does not prohibit an employer from refusing to hire a candidate because they have a criminal record. McDonald Murholme says that, while the AHRC has the right to conduct an inquiry into any complaint of criminal record discrimination, it does not actually prohibit discrimination on this basis.

“At state level, an employer is prohibited from refusing to hire a candidate because of an irrelevant criminal record in the Northern Territory and Tasmania. In all other states and territories, it is generally not unlawful for an employer to refuse to hire a candidate because of a criminal record.

“Unless the discrimination occurs in Tasmania or the Northern Territory, there is no entitlement to receive any form of damages for discrimination based on criminal history.”

McDonald Murholme advises employers to be clear about the real effect of a candidate’s criminal record.

“The employer should only ask questions about a candidate’s criminal history if the questions are designed to assess whether or not the criminal history will have any impact on the employee’s ability to perform the inherent requirements of the role. If the criminal history has no bearing on the ability to perform the inherent requirements of the role, and otherwise has no relevance to the prospective employment, there is no reason for the employer to discuss or consider any criminal history,” he says.

Was Suncorp’s decision valid?

Some would take the position of AHRC president, Rosalind Croucher, in believing that once an individual has paid for their crime, their criminal history should become just that, history.

Croucher summed this up in a recent statement, “If someone can work, and wants to work, they should be allowed to work in jobs for which they are suited. Access to work not only enables previous offenders to rehabilitate, it allows them to make a positive contribution to society. The alternative is to make former offenders wholly reliant on welfare”.

Others take the side of Suncorp, backing their choice to reject both Mr BE and the recommendation to pay him compensation.

Speaking on Miranda Devine Live, Attorney-General Christian Porter said the AHRC ruling was subjective and it was not the decision he would have made. He believes that, while a criminal record shouldn’t necessarily rule someone out of future employment, employers should be able to choose who they hire.

McDonald Murholme suggested that an employer might rely on the dishonesty rather than the criminal history itself to successfully defend itself against a claim of unlawful discrimination, but in this particular scenario he doesn’t believe that Mr BE’s history had an impact on his abilities to perform the “inherent requirements” of this role.

“I do not consider that there were legitimate grounds for Suncorp to refuse to hire him. In saying this, the decision to do so was not prohibited by any federal anti-discrimination legislation and therefore Suncorp did not need to have any legitimate grounds not to hire the candidate as a matter of law.

“I think the fact that the conviction related to accessing and possessing child pornography could have made it less likely that Suncorp would have employed him when compared to some other form of criminal conviction given the understandable stigma attached to crimes related to children,” says McDonald Murholme.

A Suncorp spokesperson, justified the company’s position on the matter, stating, “We maintain that Mr BE’s criminal record is of a serious nature and would impact on his ability to perform the requirements of the role”.

An overhaul of the “law”

The idea has been floated that there should be a review of this particular discrimination law, with Porter signalling his support. McDonald Murholme however reminds us that the AHCR report “merely contained a recommendation rather than a decision” and says there is therefore no need for an overhaul of the law as he thinks “the Attorney-General may have overreacted in his comments”.

Reference: ‘Should criminal history remain in the past when hiring?‘ HRM, Thursday 5th July 2018.