A client recently contacted HR Assured’s Telephone Advisory Service to discuss an issue regarding a potential and preferred candidate.

The client was recruiting for a casual position in their warehouse and had settled on a preferred candidate. However, as part of the recruitment process, the candidate voluntarily disclosed that he had a prior conviction for a minor criminal offence.

The client sought advice as to whether they should offer the position to the candidate, and whether there was any risk of discrimination if they refused because of his prior criminal conviction.

What is the risk of discrimination?

Whether there is a risk of a discrimination complaint will depend on the State or Territory in which the candidate will be working, as well as the effect that the conviction will have on the person’s ability to perform their role.

Only Tasmania and the Northern Territory have laws which specifically prohibits discrimination on the basis of a person’s criminal record. However, there are also provisions in Western Australia and the Australian Capital Territory which make it unlawful to discriminate on the basis of someone’s ‘spent’ criminal conviction.

In addition, the Human Rights Commission has the power to investigate a complaint of discrimination on the basis of a person’s criminal record in any Australia State or Territory. If the complaint is unable to be settled through conciliation, the Commission is required to prepare a report with recommendations and table this in parliament. But the Human Rights Commission cannot enforce its recommendations.

The exception

An important exception is where the criminal conviction prevents someone from performing the inherent requirements of their role. A good example is a truck driver who loses their licence after being convicted for drink- driving.

The legislation generally recognises that you have a right to terminate where the circumstances of the offence prevent that person from being able to perform the inherent requirements of their role.

Other relevant considerations

There is a social stigma attached to a criminal conviction. It is important to examine the circumstances leading to the offence, as well as the conviction itself and any punishment that was imposed. However, a prior criminal conviction should not automatically prevent you from hiring someone especially if they are the preferred candidate for the role.

In this case, the client considered that the offence was relatively minor and would not prevent that person from performing the role. The client also took some time to discuss the offence with the person and was informed of some troubling personal circumstances that may have reasonably explained why the offence was committed.  The client was also particularly pleased that the individual voluntarily disclosed the conviction as part of the recruitment process.

Ultimately, the client made the commercial decision to hire the person. But they were reassured by the fact that they could discuss the issue and the risks with a HR Professional before making this decision.

For more information on the recommendations and what this means for you, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.