Checking an employee or prospective employee's
criminal history is something which many employers do. However,
some employers may be putting their businesses at risk by doing
Below are answers to a few commonly asked questions
relating to criminal record checks and employment.
Can I request a criminal record check from an employee
or prospective employee?
If a criminal record check is relevant to the inherent
requirements of the role or job being applied for (or occupied),
employers can request a criminal record check.An "inherent
requirement" of a role is a requirement which, if removed from
the role, would make it a different role altogether.
An "inherent requirement" is an essential requirement.
It is not a requirement which is peripheral or non-essential.
It is important to note that criminal record checks can only be
obtained with the employee/prospective employee's consent. In
obtaining consent, employers should always explain to the
employee/prospective employee why the check is necessary (i.e. how
it goes to the capacity of the employee to perform the job, having
regard to the role and the employer's business).
Can I refuse to employ, or terminate an employee's
employment, if they have a criminal record?
Refusing to employ or terminating the employment of persons with
a criminal record will breach anti-discrimination legislation
unless the person's criminal record means that s/he is unable
to perform the inherent requirements of the specific role.
In some industries and occupations, employers can reasonably
refuse to give certain roles to persons with relevant criminal
histories. For instance financial services/institutions may be able
to reasonably refuse to appoint a person with a criminal history
involving fraud or deception. Indeed, in some occupations employers
are legally prevented from hiring persons with certain
types of criminal histories – whether that be directly
prevented (for instance, teachers with histories of child sex
crimes) or indirectly in that the person is unable to obtain a
necessary permit or licence due to his/her criminal history (such
as in the security or gaming industries).
But, where the law does not exclude it, if an employee has a
criminal history which does not prevent him/her from carrying out
the inherent requirements of his/her role (for instance, a strictly
clerical employee with traffic convictions) it will generally be
unlawful and in breach of anti-discrimination legislation to either
refuse them employment or to terminate their employment because of
their criminal history.
What is a "spent" conviction?
In Australia, legislation prohibits employers from refusing to
employ prospective employees on grounds that they have a
"spent conviction". A "spent" conviction is
generally a conviction which no longer forms part of a person's
publically accessible criminal record, because a specific period of
time has passed with no further convictions having been recorded.
"Spent conviction" legislation requires employers to
discard criminal convictions, and permits employees/prospective
employees to not disclose or answer questions about their criminal
history, after a certain number of years. The number of years
varies from jurisdiction to jurisdiction and in certain other
How must I treat the information obtained from a
criminal record check?
Where an employer obtains information in relation to an
employee, or prospective employee's criminal record, it is
important that the employer takes reasonable steps to protect the
information from misuse, loss, unauthorised access, modification
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.Madgwicks is a member
of Meritas, one of the world's largest law firm
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