Criminal record checks at work: relevance, spent convictions and privacy risks for employers

Criminal record checks are now a routine feature of recruitment in many industries, and are increasingly considered by employers as part of their broader risk management and compliance frameworks. They are often introduced with practical objectives in mind: the protection of staff and customers, meeting insurance or regulatory requirements, and safeguarding reputation.

However, criminal record checks can't be treated as a simple administrative step. In practice, the legal and operational risks associate with criminal records checks tend to arise from how and when they are requested, how the information is used, and whether decisions made on the basis of results are consistent and lawful.

Can an employer require a criminal record check?

In many cases, yes. Employers can generally request a criminal record check from job applicants, and in certain circumstances from existing employees.

The key question is relevance. Employers must ask themselves if there is a genuine connection between criminal history and the inherent requirements of the role. In practice, that means employers should be able to articulate why the check is being requested for that role, rather than defaulting to a blanket approach without any analysis.

Is a criminal record automatically disqualifying?

A criminal record is not, by itself, an automatic bar to employment.

The more defensible approach is to assess whether any recorded history is relevant to the position, having regard to matters such as:

• the nature and seriousness of the conduct;
• the time that has elapsed;
• the duties and responsibilities of the role (including access to money, valuables, vulnerable people, vehicles, data or premises);
• any pattern of offending; and
• whether the history affects the person's ability to perform the role's inherent requirements.

Is the legal landscape uniform?

Australia does not have a single, uniform regime dealing with "criminal record discrimination" across all jurisdictions.

Some jurisdictions provide more direct anti-discrimination protections concerning "irrelevant criminal record", while the Australian Human Rights Commission can also deal with complaints about criminal record discrimination in employment under the federal framework.

Even where the available remedies for aggrieved parties are limited, employers should not automatically treat this as low risk. Complaints processes can still require management time and can generate reputational issues if such matters become public.

What about spent convictions?

Spent convictions schemes operate across Australia. Broadly, they limit when older or less serious convictions must be disclosed, and they restrict how that information can be used.

The practical risk for employers is not usually that the police check "misses" a spent conviction, rather, it is that:

• applicants disclose information they are not required to disclose (often out of caution or misunderstanding); or
• a decision-maker relies on information they should not take into account.

Employers should therefore be careful about how questions are framed and how information is handled.

What are an employer's privacy obligations?

Criminal history information is generally treated as sensitive information. That has implications for collection, access, storage and disposal.

One point employers often miss is that privacy exemptions that may apply to employee records do not necessarily apply to job applicants. In other words, recruitment-stage criminal history information typically needs to be handled with particular care, including limiting access to a genuine "need to know" basis and having a clear retention and destruction approach.

Where do employers conducting criminal records checks come unstuck?

From a practical perspective, the higher-risk scenarios tend to involve:

• requesting checks too early (before there is a genuine role-based reason to do so);
• inconsistent decision-making across managers or sites;
• poor documentation of the rationale for decisions;
• "over-collection" of information; and
• not giving a candidate or employee a reasonable opportunity to respond to or contextualise adverse information.

The aim should be a process that is proportionate, consistent and defensible, and that can be clearly explained if it later comes under scrutiny.

Key takeaways

Criminal record checks can be a legitimate and useful tool for employers. The challenge is implementing them in a way that manages risk without creating new legal exposure, particularly around spent convictions, privacy handling and inconsistent decision-making.

Pointon Partners advises employers on recruitment risk, discrimination issues and employment issues. If you are introducing criminal record checks (or revisiting an existing process), our employment team can assist with policy drafting and practical implementation.

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.