Businesses are entitled to ask prospective employees about their criminal pasts, but should be careful when responding to the answers, according to employment law experts.
On Tuesday Victorian senator Derryn Hinch said in a Senate adjournment speech that he had previously urged McDonald’s Australia to implement compulsory criminal background checks to ensure the restaurant chain does not inadvertently hire individuals that had been convicted of child sex offences.
In response to Hinch’s concerns, McDonald’s Australia says it took “immediate action” and will amend its background check policies.
“We have made the decision to implement criminal background checks for all adult employees moving forward,” the company told SmartCompany this morning.
“We also have substantial existing protections in place, from hiring policies to ongoing training.”
Australian businesses are entitled to conduct police record checks on prospective employees but employment lawyers warn that SMEs should know how to use the results – and that the answers to questions might cause more problems.
“Employers do need to be conscious that there is spent convictions legislations in every state except Victoria,” employment lawyer Peter Vitale told SmartCompany.
“This means you cannot discriminate against someone for a less serious offence if it happened more than ten years ago.”
While recruiters can require applicants to consent to a criminal record check, asking questions about someone’s criminal record in an interview could cause more problems than it solves.
“You can’t just discriminate against someone on the basis of any record at all – you have to show that it will affect the job,” Vitale says.
“With job interviews, you have to be careful – some of the answers given could give rise to the idea that you have unlawfully discriminated against an applicant.”
This means some offences may not constitute a reason to refuse an applicant work – the offence must be a barrier to the individual performing the job.
“Think hard about what element of the job is affected by the conviction,” says McDonald Murholme principal lawyer Andrew Jewell.
“Try to marry up the crime with it actually being relevant to the job – you can’t just say, ‘they’re a criminal, we don’t want them’.”
“For example, convictions for traffic offences will really only be relevant for those going for driving jobs,” adds Vitale.
Asking about a criminal record in an interview can give an employee a chance to get ahead of any convictions and explain them. Jewell says that legislation in Victoria is more complex on this issue, but all employers should be wary that if they act on a disclosure of criminal history and it is not directly relevant to the role, these answers could play a part in unfair dismissal disputes later.
Employers should also be aware that a police check will not necessarily reveal all history.
“There are things like diversion programs out there and these can be applied to relatively serious crimes,” says Jewell. Where an individual has agreed to a diversion program or other measure to avoid conviction, this will not appear.
Taking a measured approach to interviews and keeping track of what is said may also help to avoid problems later, because while employees are protected from discrimination, they cannot lie about their history when asked.
“Probably this arises most when an employer says ‘we’re bringing in criminal checks’ – they get suspicious when any employees refuse them,” says Jewell.
But if an employee has been dishonest in the past about part or all of their past convictions, businesses can review that staff member’s employment, he says.
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