Criminal Record Discrimination: How Should Workplaces Handle Employee Criminal Histories?
The Australian Human Rights Commission recently recommended that Suncorp should pay $2,500 in compensation to an employee, who was refused a job when Suncorp became aware that he had a 10 year old conviction for accessing and possessing child pornography offences.
The would-be employee had disclosed the offence during the recruitment process, and Suncorp declined to employ him. His employment had nothing to do with children, and the conviction had nothing directly to do with his employment or his performance as an employee. The recommendation reflected the fact that he had been punished for his crimes, and that a criminal conviction, even for a serious offence, is not a life-long bar to employment.
Nevertheless, the AHRC received sharp criticism for its recommendation.
The Australian Human Rights Commission Act 1986 gives the Australian Human Rights Commission power to investigate a claim of discrimination, and to recommend an outcome, but no power to enforce the recommendation. There are enforceable criminal records discrimination provisions in legislation in Tasmania, the Northern Territory, and within the context of 'spent' convictions, the ACT and WA.
NSW does not have laws preventing criminal record discrimination. So, as an employer in NSW, there is little risk of liability where a criminal record is the basis for a decision to fire, or not to hire. Of course, as is the case with many facets of law, it isn't that simple.
As an experienced employment lawyer, I have had a wide range of matters relating to employee criminal records cross my desk, a few of which include:
- An employee in a children's bedding shop who was identified at random by a customer to have served prison time for child sex offences as a teacher.
The nature of the work meant that while the risk of re-offending at work was low (since children would rarely in the shop unaccompanied), the connection was so close that the employer's reputation was seriously at risk - thus the employment was terminated;
- An employee with a very serious criminal record for sexual assault, which became known to other staff who raised risk issues and objected to working with the employee. Although his conduct as an employee had been exemplary and the argument could indeed be made that the employee had 'served his time', the employer had to decide whether to terminate the employee and risk an unfair dismissal claim, or keep him on and risk employee unrest; and
- An instance of an employee being terminated which resulted in the employer checking the ex-employee's online presence. This online search subsequently showed that the employee had given a false name, and had child sex convictions in his past, which had received considerable attention on talk back radio.
What, if anything, should have been said to other employees who had ongoing social connections with the ex-employee, and how should the employer balance that with obligations to avoid defamation? In this case, the employer decided to mention the issue discreetly to employees who may have been affected, referring them to the publicly available material.
These are difficult issues, and often arise on an urgent basis due organisational concerns, i.e. unhappy employees and/or the risk of media attention. Dealing with such issues involves threading through the various employee relations and ethical questions which arise where the employee's behaviour has been unobjectionable, and there is no issue of unsuitability for the nature of the work.
Should the employee be given a fair go? Terminating employees based on past convictions, which are irrelevant to the job, means that they are much more likely to depend on taxpayers via social security than they are to be financially self-sufficient, which makes rehabilitation much more difficult.
While there are no discrimination laws with enforceable consequences relating to criminal record in New South Wales, it is important for employers to take care when balancing questions surrounding the employee's right to work, whether they had served their time, and whether their employment would result in any sort of risk to other employees or customers, or to the reputation of the organisation. There is often no 'right' answer in these situations.
If your workplace has a potential issue relating to an employee's criminal record, or you are seeking advice on criminal records or other checks at the time of employment, please don't hesitate to get in contact with Coleman Greig's Employment Law Team: