A recent report by the Australian Human Rights Commission (Commission) ( AusHRC 121) raises two interesting issues.
The first is the little-known fact that discrimination on the grounds of criminal record may constitute discrimination covered by the Australian Human Rights Commission Act 1986 (Cth) (Act) which the Commission must investigate where a complaint is made. We discuss this in greater detail below.
The second is that it highlights the rather inadequate (or perhaps even non-existent) protection that it offers the complainant. Whilst the Commission may make findings and recommendations based on these findings (including in this report a recommendation that the employer pay compensation to the complainant), the employer is not bound to comply with those recommendations. In other words, unlike in the case of other grounds of discrimination, the complainant is not able to commence legal proceedings against the employer if the matter cannot be resolved by the Commission. Nevertheless, the costs of responding to the Commission’s investigation and the possible unfavourable reporting of the outcome may encourage employers to avoid relying on criminal records other than where that is permitted by the Act.
Under the Act a person discriminates on the grounds of criminal record if any distinction, exclusion or preference is made on the basis of another person’s criminal record unless that distinction, exclusion or preference is based on the inherent requirements of the job.
We will not go into all of the factual details in the report save to say that the employer withdrew a conditional offer of employment based, in part, on the discovery that the complainant had been convicted of a serious offence.
The employer failed to convince the Commission that the relevant offence resulted in the complainant being unable to fulfil the inherent requirements of the position which he had been offered. The Commission pointed out that an inherent requirement must be something that is an essential feature or defining characteristic of the particular job. It found that, while the holding of certain values and personal attributes may be desirable to employers, broad and abstract qualities may be insufficiently linked to the particular role to be considered an inherent requirement. Thus, the employers rather broad requirement that the complainant be “trustworthy and of good character” was insufficient to meet the inherent requirement test.
The report serves as a warning to employers in the course of the recruitment process to ensure that, where details of a person’s criminal record are sought or obtained in that process, care is taken to ensure that the effect of the convictions is properly judged against the inherent requirements of the job and that there is not simply a knee-jerk reaction based on stereotype.