The recent AHRC report into discrimination in employment on the basis of criminal record, BE v Suncorp Group Ltd  AusHRC 121, has garnered significant media attention and community debate.
What it serves to highlight is that the Australian Human Rights Commission (AHRC) is a "toothless tiger" when it comes to discrimination on the basis of criminal record. As noted by the AHRC on its website:
This lack of enforcement capability, coupled with the fact complainants are unable to bring proceedings in a federal court for discrimination on the basis of criminal record (as they can, for instance, in respect of disability, race, sex or age discrimination), leaves employers subject to an AHRC recommendation with an interesting decision to make as to whether it should be implemented. This is explored further below.
THE REPORT: BE V SUNCORP GROUP LTD
Mr BE (Complainant) made a written complaint to
the AHRC alleging that Suncorp excluded him from employment by
withdrawing a conditional offer for the position of Work@Home
Consultant on the basis of his criminal record.
On 30 November 2015, the Complainant received an offer of employment which was conditional upon a satisfactory background check including a criminal history check. The Complainant consented to Suncorp performing this criminal history check.
The criminal check revealed that in 2008 he had been convicted of using a carriage service to access child pornography material (for which he was ordered to serve 12 months in prison but released on a 2 year good behaviour bond) and possession of child pornography (for which he was fined $5,000).
The criminal history check also showed that in October 2015 he
was fined $1,000 for a failure to comply with reporting
obligations. Those reporting obligations were related to the
previous child pornography offences.
After receiving this information Suncorp, in accordance with its usual practice, contacted the Complainant to discuss his criminal record.
Shortly after that, Suncorp notified the Complainant that his conditional offer of employment had been rescinded. His criminal record was not cited as a reason for the rescission.
He was informed that he had narrowly missed out on the role and would automatically be considered as part of the next recruitment round in February 2016. He was not, however, contacted about the recruitment process at that time. When the Complainant enquired about this in March 2016 he was informed that he was not considered for the February 2016 intake as the recruiter had changed. He was encouraged to apply for further advertised roles with Suncorp. He was not told at any time that his criminal record would be a barrier to employment with Suncorp.
In its response to the AHRC Suncorp submitted that it had concerns about the Complainant's ability to undertake the inherent requirements of the position of Work@Home consultant based on his criminal convictions and, in any event, preference was given to an internal candidate who applied for the role at a late stage in the recruitment process.
Suncorp further submitted that the Suncorp Values are inherent requirements of the position and the Complainant's criminal record gave rise to serious concerns as to whether he could demonstrate and fulfil those values including respect, honesty and trust.
As noted at paragraph 43 of the report:
- the role involves dealing with confidential customer information
- the role is 'largely unsupervised' as it is based at home
- the role involves work with technology and the internet, and
- the role involves working to promote Suncorp's corporate responsibility."
In its report the AHRC considered these submissions in detail and found that Suncorp had discriminated against the Complainant on the basis of criminal record by excluding him from the role of Work@Home Consultant.
At paragraph 75 of the report it was held:
The work experience that was considered included the Complainant's 7 years as a caseworker for the Telecommunications Industry Ombudsman after his 2008 convictions (of which the TIO was on notice) where he had access to personal and confidential information.
At paragraph 77, the report continues:
- is unable to deal appropriately with confidential customer information, or
- is unable to perform duties that involve the use of technology and the Internet, unsupervised, through Suncorp's systems."
The AHRC also found that Suncorp's corporate social responsibility programs (which encouraged participation in community programs including those involving young people) were not sufficiently connected to the job of consultant for that to be a relevant factor in determining the Complainant's suitability for employment in the role.
On the basis of the above findings, the AHRC made a recommendation that Suncorp pay the Complainant compensation of $2,500 on the basis of hurt, humiliation and distress. Further, it recommended that Suncorp revise its policies in respect of recruitment of people with criminal records in accordance with the applicable AHRC publication and conduct training for its recruitment, human resources and management staff involved in decisions in respect of criminal record discrimination.
AHRC RECOMMENDATIONS – RESPONSE OF EMPLOYERS
Unlike an order of a tribunal or court, the defiance of which could lead to a finding of contempt, an employer has the right to decline to implement a recommendation of the AHRC relating to criminal record discrimination. It is a genuine option. A high percentage of employers subject to such recommendations refuse to do so.
In this particular case, Suncorp declined to pay compensation to the Complainant. Suncorp provided a respectful but firm response to the AHRC:
Unlike a court or tribunal decision, the response of the employer is recorded as part of the report, which is then provided to the Attorney-General and is publicly available.
As such, a key consideration for employers subject to an AHRC recommendation of this kind is that of reputation, including any public or political opprobrium that might follow (if any) from a failure to implement recommendations.
The reality is that the technical and nuanced legal
deliberations in an AHRC report largely give way to the "court
of public opinion" and the visceral reaction the community at
large naturally has to the commission of certain criminal
With respect to the AHRC, its lack of enforcement powers effectively renders its recommendations on criminal record discrimination precatory. It is not axiomatic that employers will or even should implement its recommendations in this area. The final decision taken by an employer will likely be as informed by media and reputational factors as it is legal considerations.
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