What to Do If a Potential Employee Fails a Police Check
Modern employment contracts contain many safeguards that allow an employer to legally dismiss an employee. What’s often overlooked is the need to have a reliable process in place for when you need to handle a potential hire that has failed a criminal background check.
There are a lot of challenges involved when implementing criminal background checks as an employer. Although those background checks are considered essential due diligence, the process also needs to be consistent, fair, and transparent. Get this process wrong and your organisation could be exposed to legal action, which is a risk you will want to avoid.
A ‘Failed’ Criminal History Check
A high number of job vacancy adverts now comes with a disclaimer along the lines of:
All offers of employment are subject to a police check clearance that is deemed satisfactory
Where a lot of employers go wrong is in assuming that this disclaimer (however it is worded) gives them complete coverage and allows them to either dismiss an employee or refuse an employee’s application if a national police check shows a criminal history. That is not the case.
The Legal Obligations of Employers and a Police Check
While most businesses are aware that to survive in the modern age they have to be both ethically and business-focused. That’s why so many are now requiring a background check on employees. In some businesses and industries, a criminal record check is required by law.
For example, if you run a business that works in the aged care or disability care sectors and you hire someone with a criminal history of sexual offences or violence then you may be punished by the authorities for employing that person. The challenge is ensuring that employees are not being discriminated against based on their police check and criminal history.
To ‘fail’ a background check doesn’t always mean that the person applying for a job is not legally suited to the position. That means you need to ensure that you interpret the national background check with the right kind of guidance. By integrating the right strategies in your hiring process, you can potentially save yourself a lot of legal issues.
The key thing to determine is what constitutes a criminal check ‘failure’ for your organisation, the advertised vacancy, and for your industry.
When is a Criminal Background Check Deemed Unsatisfactory?
Say that you’re looking to hire an accountant. You get an application in response to your ad from a qualified accountant with an excellent and relevant work history. Unfortunately, the Police Check is returned and it shows that they have criminal convictions related to speeding in their car, or were arrested and convicted of being drunk and disorderly after their graduation day.
In those cases, the conviction is not for anything relevant to the advertised position, so would it be fair to deny hiring that person who is otherwise perfectly suited to the position?
However you choose to address this kind of situation will end up affecting the rest of your business. It tells your existing employees that you’re more tolerant of a criminal background check showing unrelated convictions. However, if you’re too strict then you could potentially be leaving your business vulnerable to discrimination charges.
It’s also worth noting that if you make your standards too high and you immediately deny an application based on the background check results then you could be missing out on amazing applicants.
The key here is to ensure that you keep standards high from the outset. All prospective employees need to know in advance about your way of dealing with ‘failed’ Police Checks. If you don’t, or you keep changing the bar, then you could face charges of discrimination by the Equal Opportunities Commission.
Can You Legally Refuse A Job Application after a Police Check?
If a police check comes back that shows convictions that are directly related to the offer of employment, then you’re legally entitled to either review or withdraw the offer. In those cases, if an applicant believes that they have been discriminated against they can make a complaint to the Equal Opportunities Commission.
For example, if you run a financial business and an applicant’s police check comes back showing convictions for theft, fraud, or dishonesty, then you have legitimate cause to deny that application.
Some employment types are prohibited from having a criminal conviction. Doctors, caregivers, and lawyers all being examples where some kinds of convictions on a criminal background check will mean immediate refusal of a job offer, or dismissal if the person is already working.
At its core, if a potential employee or an existing member of the team undertakes a national police check and results are considered to be too high a risk, then the law states that you do not have to employ or retain that person.
It’s important to get the balance right. It means comparing the correlation between the type of conviction they have and the relevance to the role that they have applied for. It also means ensuring that the business itself is protected against reputational issues or the threat of litigation.
Being Sued For Criminal History Discrimination
In most Australian states (not including Victoria), an applicant can file a complaint against your business if they believe that they have been discriminated against in the recruitment process. Complaints like this are submitted officially to the Equal Opportunities Commission and are enforced by the Australian Human Rights Commission Act of 1986.
So if your process for evaluating the importance of specific convictions on a police check certificate is fairly stringent, your job adverts need to reflect that.
The state of Victoria is slightly different in that legislation there only protects existing employees and not any potential ones.
Overlooking a Criminal History Check that’s Unsatisfactory
All businesses and organisations have their own recruitment processes. Only if those processes result in a high risk for the public will the authorities intervene. Those authorities will also get involved if the employment process breaks legal employment procedures.
So if your business decides that overlooking certain convictions is perfectly acceptable then all company policy needs to communicate that fact. Likewise, if you take a more zero-tolerance approach to a national criminal history check that needs to be made as clear as possible from the outset of the recruitment process.
Taking a zero-tolerance approach to criminal history, while does help to eliminate any legal grey areas, can also mean that you limit the pool of talent that will apply for your advertised positions. That can be particularly frustrating if the convictions are not even vaguely relevant to the job.
One way to protect yourself and the business is to ensure that you don’t use a probationary status as a possible trigger for dismissal in the event of a ‘failed’ criminal history check. Ideally, you should ensure that your recruitment process includes the police check before you make any offers of employment. That includes probationary or otherwise.
By doing this, you don’t have to justify any particular reason for the application rejection. You don’t even have to mention the police check.
A criminal background check is one of the most important parts of recruitment due diligence. However, it needs to be more than a case of simply ticking a box and hoping for the best. Your entire employment policy needs to reflect your stance on convictions, types of offences, and relevance to each vacancy.
At its most basic, depending on the industry and the relevant official mandates, a potential or existing employee that ‘fails’ a criminal history check shouldn’t be overlooked.
As long as your business uses a fair and transparent process for the use of disclosed criminal records, then potential accusations of discrimination can be avoided. It’s an extremely sensitive area, and there is a lot of potential for mistakes to be made by both businesses and potential employees.
For lots of jobs in Australia, there is simply no need for a criminal record check. For those roles, the employer does not need to request information about criminal history. All employers need to read and understand Section 4 of the Australian Human Rights Commission. This states that to “decide whether a criminal record is relevant to the inherent requirement of the job”, you need to:
- Identify the essential tasks, circumstances and requirements of the job
- Assess whether criminal records are relevant to these tasks and requirements
- Assess an individual criminal record against the inherent requirements of the job
When Should You Ask For a Criminal Background Check?
There are some useful considerations to take into account when it comes to finding the right time to ask for a criminal history check. Ideally, you should only request the police check for those applicants who have been shortlisted for the position. This helps to:
- Avoid time-consuming and potentially unnecessary admin needs (processing a lot of consent to disclosure forms alone can take a lot of time)
- Manage costs, since all police checks incur some form of fee
- Minimise risks of seeing confidential information that’s simply not necessary
On the job application form and the advert itself, applicants need to be forewarned that an offer of employment is dependent on the findings of the police check. It should also be reiterated during the interview process.
It’s in your interest not to make any kind of job offer before you have received the results of a criminal history check. If you allow someone to start work, even for a probationary period, and their background check comes back with relevant convictions that make them unsuitable then you risk wasting business resources. It can also cause a lot of stress for the other employees.
Don’t forget the fact that although using a criminal background checking service like Worker Checks means that you get results quickly (usually within one business day), if a check is flagged for manual review it can take weeks for the certification to be emailed to you. This happens in around 30% of applications.
If you need to fill a position quickly, any delays in submitting your request for a criminal history check can be a problem. In those cases, you need to gain consent from the relevant applicants to get that police check process started.
Convictions of Existing Employees
Plenty of businesses and organisations will require that their workforce update their police checks regularly. In many cases, a member of your workforce might have received a conviction while employed by you. The good news is that the way to handle this issue is very similar to that when presented with an applicant with convictions.
It is up to you and your business management how you handle this situation. Ideally, if the offence is not relevant to the role of the employee and presents no risk to the business, then leniency is highly advised.
Overall, the more information that an employer has about their applicants and employees, the easier it is to exercise more reasonable judgement when evaluating potential connections between the requirements of a position and a criminal record.
The need to remain transparent is essential. Employers will inevitably take longer to check an application from someone with a criminal record. This means additional pressure on applicants.
Whatever system you establish for when to request an Australian police check and how you evaluate convictions in terms of the position, each decision needs to be made on a case-by-case basis. Look at the basic and inherent requirements of the role that they will be doing and the tasks that they will be expected to do.
A police check that comes back with convictions should never mean an absolute blanket policy of refusal (unless the vacancy is in a mandated industry or a role that means close contact with vulnerable groups).
If a potential employee fails a criminal record check, it needs to be assessed according to the requirements of the vacancy. In many cases, you’ll find that the connection between the job and the criminal record is clear and a decision can be made easily. This is easier if your business or organisation deals with particular people or is a relevant industry.
Police checks will only provide some very basic information, and they will not include any specific details about the circumstances of a conviction. That can make it harder for an employer to understand if a conviction is relevant to a position. In those cases, an honest and transparent discussion with the applicant will need to be conducted. This will allow them to provide any relevant information.
This allows you to more professionally consider the relevance of the criminal record, the seriousness of the offence, and even factors like the age the applicant was when the crime was committed.
Conduct the right criminal background check and respond to it in the right way and your business will only benefit.