Recruitment and the legislation governing it is now one of the most complex areas in which a business engages, and it’s vital to get it right.
Twelve months ago, Senator Derryn Hinch made an adjournment speech in Australian Parliament, in which he publicly named a convicted child molester who was employed at McDonalds. His announcement triggered a chain of events that prompted an investigation into the food chain’s recruitment process – and as a result of the revelations, McDonalds commenced compulsory criminal checks for all applicants over the age of 18.
WHAT DOES THE LAW SAY?
In Australia, some industries are legally required to conduct police checks under legislative or regulatory frameworks for registration, licensing or employment purposes. And some of these occupations may include, but are not limited to, lawyers, community care workers, teachers, the police, correctional staff, taxi drivers, financial brokers - you get the drift.
There are many other industries – such as iconic fast-food chains, walking a tightrope in this area. Because while more and more employers choose to conduct criminal history checks as part of their own risk mitigation strategy, it isn’t compulsory.
THE RISK OF DISCRIMINATION
InterCheck Australia, an accredited police screening service, highlights the large number of companies who do not fully understand best practice surrounding criminal history checking procedures. ‘This can be a real danger for businesses, because there are ramifications and risks associated when handling, storing, sharing and making adverse decision based on criminal history information.’
Under the Human Rights and Equal Opportunity Act 1986, the Australian Human Rights Commission (AHRC) has the power to investigate workplace discrimination on the grounds of a person’s criminal record. According to the guidelines provided by the AHRC, whether or not a criminal record is relevant depends on the inherent requirements of a position.
Where an individual’s criminal record prevents them from performing the inherent requirements of a job, discrimination is unlikely to be argued. So, if a prospective employee is found to have prior convictions that prevent them from working in such an industry, an employer is free to refuse employment for this reason.
BURDEN OF PROOF
And then there are some other types of pre-employment checks that can be risky business from an evidentiary perspective. The burden of proof rests with the employer to ensure that criminal history checks are only conducted when they’re directly related to the inherent requirements of a role. When it’s not - and the employer decides that the candidate is not right for the role, they need to be very clear of their reasons behind their decision. And here’s where the risk lies.
Proving that a candidate is not offered a job because of reasons unrelated to their criminal history may be complex - and verge on discrimination. And depending on your business’s location and jurisdiction, the laws can differ accordingly. Best practice is knowing the regulations in your region, and then putting appropriate compliance system in place prior to implementing any type of pre-employment screening.
TWO THINGS TO CONSIDER
- In the case of McDonalds, Hinch’s argument was the fast food chain’s failure to recognise any alignment between an applicant’s criminal history and the inherent requirements of the positions they offer. McDonald’s eventually changed their processes - but it has been at an unmeasurable cost.
- An applicant should not automatically be dismissed because of their criminal record if the disclosed criminal record is irrelevant to the intended role. Actions like this may expose a business to claims of workplace discrimination, as stipulated under the Australian Human Rights Commission Act.
If you have any doubts, contact a professional who can support you through this process. Look for a consultant with the right expertise, a thorough knowledge of best practice and the legislation governing it. Get the right advice first and avoid making any on-the-spot decision.
Do what’s right for your business, your employees and your consumers!
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