Australia: The AHRC and criminal record discrimination: A toothless tiger

Last Updated: 9 July 2018
Article by Michael Byrnes

The recent AHRC report into discrimination in employment on the basis of criminal record, BE v Suncorp Group Ltd [2018] 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:

"It is important to note that while certain conduct may be found to constitute discrimination by the Commission, the HREOC Act does not make the conduct unlawful. If the Commission finds that an act or practice constitutes discrimination, and the complaint is unable to be conciliated, then the Commission's actions are limited to preparing a report with recommendations, to the Attorney-General for tabling in Parliament. The Commission does not have the power to make respondents to a complaint comply with or implement its recommendations."

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:

"Based on its submissions from 8 June 2016, 9 September 2016, and 26 September 2016, it appears that there are several aspects of the role that Suncorp believes Mr BE cannot perform as a result of his alleged inability to satisfy the inherent requirements of being trustworthy and of good character. These aspects of the role are as follows:
  1. the role involves dealing with confidential customer information
  2. the role is 'largely unsupervised' as it is based at home
  3. the role involves work with technology and the internet, and
  4. 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:

"Mr BE's convictions are undoubtedly very serious. The law and the community appropriately respond to such offences with censure. Further, aspects of the role require a Work@Home Consultant to be trustworthy and of good character: in particular, the requirement that a Consultant be able to deal appropriately with confidential information. Notwithstanding this, I consider that based on the material before the Commission, including Mr BE's work experience and training, it is not apparent that he is unable to fulfil the requirement to be trustworthy and of good character."

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:

"In particular, I do not find that Mr BE's criminal record alone suggests that he
  • 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:

"We have carefully considered your findings and recommendations. In particular we note your finding that Mr [BE] was discriminated against on the basis of his criminal record. We respectfully maintain that Mr [BE]'s criminal record is of a serious nature and impacts on his ability to perform inherent requirements of the Work@Home Consultant role. For this reason, Suncorp declines to pay any compensation to Mr [BE].

Notwithstanding the above, Suncorp has developed comprehensive recruitment procedures and provides on-going training to employees, including in relation to anti-discrimination and equal opportunity. These procedures and training assist with ensuring we can fairly assess whether a prospective employee with a criminal record can perform the inherent requirements of a particular role, on a case-by-case basis.

We will also consider the Commission's publication, On the Record: Guidelines for the Prevention of Discrimination in Employment on the Basis of Criminal Record, as part of our ongoing review of procedures and training. We are committed to ensuring fair and non-discriminatory methods of assessing a prospective employee's criminal record against the inherent requirements of the role."

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 offences.
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.

For further information please contact:

Michael Byrnes, Partner
Phone: + 61 2 9233 5544
Email: mjb@swaab.com.au

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.

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