Four Things to Consider When Your Candidate’s Police Check Returns a Criminal History

It is common to think that the hardest part about recruitment is choosing the right candidate for the role. After spending many hours adverting, filtering, reading, interviewing, culling, phoning, logging (background checks) – you finally find your best candidate…then they return a criminal history or DCO (Disclosable Court Outcome) on their police check. Knowing what to do with this result can actually be the hardest part and there are things to be considered. It’s not about just running the police check; it is knowing what to do with the result.

1 – Discrimination

This is important.

The Australian Human Rights Commission states “Criminal record discrimination occurs when someone does not experience equality of opportunity in employment because of their criminal record”. 23% of all complaints received by the Commission under the AHRC Act were on the basis of criminal record discrimination (July 2010 – June 2011).

Ensure you do not have a blanket company policy that forbids hiring candidates with a criminal record – consideration needs to be given to relevance of any conviction to the role. Stringent, up-to-date hiring policies need to be in place and do not rule out seeking legal advice to be sure that your policies and procedures are correct. A recent case Smith v Redflex Traffic Systems highlights the importance of having clear policies and thorough internal training.

You can find more guidelines for the prevention of discrimination in employment on the basis of criminal record in Human Rights: On the Record.

2 – Asking your candidate if they have a criminal record

Requesting details of a candidate’s criminal history prior to a police check being undertaken with ACIC or a recognised police jurisdiction could be problematic if an employment decision is made entirely on information in an employment application.  The individual may provide information that is protected under various legislative guidelines. The release of police history information is subject to information release policies, specifically spent conviction legislation.

There are State-based Spent Conviction Schemes and Information Release Policies which may impact what results are permitted for release based on various factors such as: the role that your candidates are applying for, how long ago the offence/s occurred and the court decision (or punishment). If you ask a candidate about their criminal record, you risk obtaining information about a conviction that may not actually be legally permitted for release and should therefore not form a part of the decision-making process.

3 – Communication

Remember that candidates with a criminal record may be a little more anxious than your average candidate, so communicate with them.  Put them at ease. Give them a chance to explain their situation.

The 2016-17 Australian Census showed that there were 3,005 male offenders per 100,000 males and 910 female offenders per 100,000 females.  At PeopleCheck approximately 5% of police checks run have a Disclosable Court Outcome; that is around 1 in every 20 candidates we screen, so you are bound to come across a candidate with a criminal history at some point.

It is also essential, and a mandatory part of the process, that all candidates with a Disclosable Court Outcome are given the opportunity to dispute the record.  In some cases, and depending on the police jurisdiction, the gathering of Police Check Information is a manual process for the police and mistakes can be made.

4 – Professionalism

With a sensitive topic like this it can sometimes divide opinion. This certainly occurred with the BE v Sun­corp Group Ltd case which raised debate in many offices across many industries. The key is to stay objective, ensure decisions are being made based on the inherent requirements of the role and ensure thorough record-keeping and communication at every step. This will ensure professionalism throughout and hiring decisions should fall in line with legislative requirements organically.

 

The information contained in this post is the opinion of PeopleCheck Pty Ltd and does not form the basis of legal advice.

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