The Australian Human Rights Commission (AHRC) has recommended a business pay an ex-employee $76,639 in damages and implement more comprehensive policies and training to assess criminal records in recruits, after finding it discriminated against an ex-employee on the basis of his criminal record.

During the recruitment process for a solution specialist, a criminal record or security check was not compulsory, although the employee explicitly asked on two occasions whether this would be a requirement. Ten days after the employee commenced, the employer, received information from a supplier who had found media reports indicating the employee’s serious criminal record. The employer then held two meetings with the employee where he either disclosed or confirmed he had a criminal conviction in New Zealand for selling MDMA for which he had served one year of home detention. He was terminated at the second meeting.

The employer submitted the serious criminal actions were “inconsistent with its core values … employees must have and exhibit the highest ethical standards.” It further submitted the criminal history caused them to question the integrity of the employee’s conduct during the recruitment process, in that it was “incumbent on the employee to volunteer information that may impact on his ability to perform the role … if he had volunteered the relevant information this would have been assessed fairly and equitably as part of the recruitment process.” The employer also highlighted some of its government clients require security clearances for project work. The President of the AHRC was not persuaded the clearance was an inherent requirement of the position, particularly given the employee had specifically raised the issue of whether he was required to get a security clearance and was told no.

In considering whether the criminal conviction was relevant to the inherent requirements of the role, the President considered such factors as circumstances surrounding offending, time since offending and character references/professional reputation at the time of conviction. The President concluded the exclusion was made on the basis of the employee’s criminal record, therefore impairing his equal opportunity and treatment in employment as it was not based on the inherent requirements of the role. The President recommended the employer develop policies to prevent discrimination of the basis of criminal record, conduct training to assist staff to assess criminal record with the inherent requirements and pay the employee $71,639 in compensation for loss of earnings and $5,000 for hurt, humiliation or distress.

This report highlights the importance of understanding equal opportunity law and what constitutes discriminatory practices. Attend our Successfully Managing EO, Bullying and Diversity in the Workplace: Manager Session on 8 December or have your employees attend our Successfully Managing EO, Bullying and Diversity in the Workplace: Employee Session on 14 December to increase knowledge of protected attributes and how to prevent unlawful discrimination in your workplace.