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Can an employer discriminate based on criminal record?

A recent case in the Australian Human Rights Commission (“AHRC”), BE v Suncorp Group Ltd [2018] AusHRC 121, has looked at the issue of discrimination against a prospective employee due to their criminal record.

The definition of ‘discrimination’ in section 3(1) of the Australian Human Rights Commission Act 1986 provides that discrimination “does not include any distinction, exclusion or preference in respect of a particular job that is based on the inherent requirements of the job”. Therefore, employers can choose not to employ a person because they have a criminal record if the criminal record is relevant to the inherent requirements of the job.In Qantas Airways v Christie [1998] HCA 18, Brennan J stated that “the question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs”. This means that after committing some offences, there may be some jobs that a person will not be eligible to perform by reason of their criminal record. For example, it would not be considered discrimination if an employer did not employ a person with a criminal record involving dishonesty offences if the employment involved tasks requiring honesty such as dealing with sensitive and confidential information; or dealing with money.

In the above case, Suncorp Group Ltd (“Suncorp”) refused to employ the applicant as a work at home insurance claims assist consultant when it became aware that the applicant had a conviction for accessing and possessing child pornography. Applying the section 3(1) test, the AHRC was not satisfied that the applicant was unable to fulfil the inherent requirements of the role and found that the applicant had been discriminated against on the basis of his criminal record.

The AHRC “recommended” that Suncorp pay compensation to the applicant in the amount of $2,500.00 to compensate for “hurt, humiliation and distress” and that it reassess its policies in relation to prevention of discrimination on the basis of criminal record.

Unlike an order of a court or tribunal, an employer has the right to decline to implement a recommendation of the AHRC relating to criminal record discrimination. Suncorp declined to pay compensation to the applicant on the basis that it disagreed with the AHRC’s findings.

What does this mean for employers and employees with a criminal record?

This decision highlights that while certain conduct may be found to constitute discrimination by the AHRC, this does not mean that the conduct is “unlawful” as complaints of unreasonable discrimination on the basis of criminal records are not expressly covered by specific anti-discrimination legislation.

If an employer discriminates against a person on the basis of their criminal record, a complaint may be made against them to the AHRC. While the recommendations made by the AHRC are not enforceable, the report produced by the ARHC includes the employer’s response to the recommendations and will be made available to the public and the media and could therefore impact the employer’s reputation.

Liability limited by a scheme approved under the Professional Standard Legislation

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