The potential for discrimination based on a criminal record has been a hot topic since background checking started to find its way into the Australian recruitment and compliance arena. An article by Michael Byrnes (Partner at Swaab Attorneys) delving into a recent high-profile case involving Suncorp is a good summary of the factors at play when recruitment decisions are made based on criminal convictions that are highlighted as part of a background check.
BE v Suncorp Group Ltd
This article considers the role of the Australian Human Rights Commission (AHRC) in making recommendations in cases of alleged discrimination based on criminal record and in particular, the employer’s absolute right to decide whether it will follow these recommendations; hence the “toothless tiger” analogy. In this case, Suncorp felt that the candidate’s conviction (using a carriage service to access child pornography material, for which he was ordered to serve 12 months in prison, and possession of child pornography) impacted his ability to perform core requirements of his role and declined to follow the AHRC’s recommendations for compensation.
Suncorp’s internal strategies mirror those we recommend for our background checking clients; take a detailed and objective look at recruitment processes, including identifying the requirements of roles recruited for and establishing escalation points and guidelines for handling adverse findings. Also key is ongoing internal training with the AHRC’s On the Record: Guidelines for the Prevention of Discrimination in Employment on the Basis of Criminal Record in one hand, to ensure that decisions involving criminal records for prospective employees are made based on the potential impact of any identified record on the inherent requirements of the role.
Read the full article here