Discriminating against a prospective employee on the basis of a criminal record is generally a no-no, but the regulations have been amended to re-cast the ground as “an irrelevant criminal record”. It is a significant distinction, and the change has a back story.
About a year ago, the Australian Human Rights Commission (AHRC) found an employer had discriminated against a job applicant when the employer refused to confirm his placement after discovering he had child sex offence convictions. The company held the view his background was incompatible with its values and image. But the AHRC disagreed, essentially saying that the subject matter of the convictions was not relevant to the inherent requirements of the job. It recommended compensation for the hurt and humiliation the prospective employee suffered.
The principle that a person ought not be perpetually ‘paying their debt to society’ is at the core of this outcome. But that does not make the task of employers any easier when dealing with a confronting set of circumstances such as that employer was. And that is what has prompted the federal government to alter the grounds of discrimination to include the word “irrelevant”.
The change is not carte blanche for HR and recruiters to reject potential employees due to their criminal records, especially where the nature of the offences is particularly odious in the opinion of the recruiter. But it does open the door to an employer refusing to employ a person with a criminal record which the employer believes makes them unsuitable for the position.
If an employer can demonstrate relevance of the criminal record to the work and/or business that in turn influenced the decision-making process of recruitment then the exemption would provide a defence for the employer if it declined to hire. In the case which led to the changes, the AHRC concentrated on the inherent job requirements, whereas the employer was taking a wider view, pointing to corporate values and public expectations. With the changes to the definition, the company’s stance would have a better chance of passing muster.