March 19, 2024

Discrimination & Criminal Records

Explore fair HR practices for managing criminal records, guided by insights from a significant legal ruling.

A recent legal ruling highlights the discrimination faced by an employee due to her past criminal record, deemed irrelevant to her position.

The case involved a hasty response from an HR manager after discovering an employee's history of violence and drug-related offences. The manager restricted the employee's access to work systems and placed her on leave without thoroughly investigating the nature or relevance of the past convictions.

The legal scrutiny criticised the HR manager's failure to assess the applicability of the criminal record to the employee's role, leading to direct discrimination.

This incident underlines the importance of HR departments upholding legal and ethical standards when dealing with individuals with criminal backgrounds. By adopting a thoughtful and nuanced approach, organisations can avoid legal challenges and promote a culture of fairness and transparency.

The controversy emerged when a regulatory body alerted the employer about an employee's criminal record, despite her upfront disclosure during the job application process. With the primary HR head absent, the acting manager took drastic actions without seeking further details or consulting the employee's file.

The legal body acknowledged the employee's transparency and the initial HR approach in evaluating her circumstances, which allowed her to continue her employment.

This case serves as an example of the correct and incorrect HR practices regarding employees with criminal records. It emphasises the need for gathering comprehensive information and understanding the context before making decisions.

Discussions extend to the recruitment phase, where discrimination against candidates with criminal records is notable. A report points out that a significant number of employers might exclude such individuals from their recruitment processes.

According to the Australian Human Rights Commission, rejecting an application based on criminal history is justifiable only if the offences directly relate to the job's core requirements. Employers must demonstrate this relevance if challenged in legal forums.

Legislation across Australian jurisdictions outlines the treatment of 'spent convictions', which are not typically disclosed after a certain period.

HR professionals are encouraged to carefully consider the relevance of a criminal record, taking into account the timing, severity of offences, and disclosure at the application stage.

The focus is on discretion and ensuring that only pertinent information about a candidate's past offences influences hiring decisions. This approach aims to balance inclusivity with risk management, highlighting the need for thorough, informed, and empathetic handling of individuals with criminal records.

Lessons for Employers:

Evaluate Relevance Carefully: When a criminal record comes to light, pause and assess its relevance to the person's role. Avoid making snap judgments that could lead to discrimination.

Ensure Decision-making is Informed: Decisions regarding an employee’s criminal past should still be made with care. Always seek comprehensive information and understand the individual’s situation fully before acting.

Recruitment Practices: Be mindful not to automatically exclude candidates with criminal records. This involves a thoughtful consideration of the specifics surrounding past offences and relevance to the role.

If you need any advice and need help, please reach out at or 1800 877 747


The information available on this website is intended to be a general information resource regarding matters covered and it is not tailored to individual specific circumstances or intended as a substitute for legal advice. Although we make strong efforts to make sure our information is accurate, HR Dynamics cannot guarantee that all the information on this website is always correct, complete, or up-to-date. HR Dynamics recommendations and any information obtained on this website do not constitute legal advice.

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