Criminal History Checks in the Workplace
It goes without saying that a common concern within the recruitment phase of the employment lifecycle, is whether a candidate will be the right fit for the job. One factor that may form part of the selection criteria is a background check – specifically the potential criminal history of an individual and how this may affect their ability to fulfill the requirements of the position. Therefore, it only makes sense to explore this topic in more depth to ensure you are aware of what a background check involves, the sorts of information you as an employer can ask for and some ways that you can implement screening processes within your business’ recruitment or onboarding process.
What is a background check?
According to the Australian Government’s Department of Home Affairs, background checks consist of the following:
a criminal history check by the Australian Criminal Intelligence Commission
a national security assessment by the Australian Security Intelligence Organisation
a ‘right to work in Australia’ check if you are an Australian Visa holder. This check is conducted through the Department of Home Affairs’ Visa Entitlement Verification Online (VEVO) system.
Note that for individuals who are under 18 years of age, Criminal History Checks may not be conducted, however, in their place can be a national security assessment.
Discrimination and criminal records
For certain industries, it may be a requirement to undergo a police or background check. For example, it is a requirement that in the field of education, any employee working with children must have completed a Working With Children’s Check (or a Blue Card in Queensland).
Employers have a right to request a new employee undergo a background or police check prior to the commencement of employment with the business. When asking for this information, it is important to avoid making a decision based on the information you may receive if it does not directly affect the role.
It is important that when you are conducting the recruitment process that you avoid discrimination in general – specifically avoid topics which are protected attributes. In some cases, not employing someone based on their criminal history may be considered discrimination, if the person’s criminal history would not affect their ability to do the job. The Fair Work Commission reports that the Australian Human Rights Commission or the AHRC have investigated and conciliated circumstances where it has been suspected that there has been, “Discrimination based on irrelevant criminal record, trade union activity, political opinion and social origin”.
Tips for how you can implement background checks for new hires!
As an employer, you may wish to consider the following:
An employer could make it compulsory for all new employees to undergo a background or criminal history check.
Commencement of employment may be subject to the successful outcome of the check or it may form part of a condition within an agreement between the employer and the individual candidate.
A standard process should be put in place for all employees starting with the business. This would be to avoid any discrimination or adverse action complaints.
Consult your policy and procedures manual to find out if criminal history checks are specified.
In the event of an outdated or absence of policy, you may wish to consider expanding on your policies and procedures to include guidelines and expectations regarding criminal history checks (for both management and individual candidates and employees).
What can you do if you find out information after hiring?
If you have already hired someone and you later learn about a record, or the employee commits an offence while employed with the business, the potential options for managing this would depend on whether the offence/s would impact their ability to continue within their position or whether there was an implied term within the contract of trust and confidence (and whether this offence would breach that trust and confidence). It is important that employers exercise reasonable judgement if presented with this information as the employee’s conviction may not have an impact on their ability to perform their duties. Advice should be sort on a case by case basis about this.
To conclude, it is important to know the rights of employees or potential employees however, it is equally important to know your rights as an employer. If you find yourself in doubt, it is always best to seek professional advice.
For more information, contact the team at HR Business Assist. We’re here to help businesses like yours and are passionate about prevention!