Police Checks on Employees – Important Considerations

Posted on August 10th, 2009 by Drazen Drazic

By SGirl:

An interesting question came across our desk this week to do with police checks on current employees and potential new employees.

Things like PCI and the increasing awareness of the human factor of security threats means more and more organisations are getting police checks done on candidates and as part of an ongoing assurance program.

So what happens if you get a report returned that shows a conviction?  What do you do? Sack the employee? Not hire them? Perhaps, perhaps not.

While some organisations have a legal requirement not to employ anyone with a criminal history (working with children, issuing licences to name a few), for others the requirements and boundaries that need to be considered are a little greyer.

Essentially there are basic human rights that prevent discrimination in the workplace, including whether or not a person has a criminal conviction. The Human Rights and Equal Opportunity Commission have a discussion paper on it:

http://www.hreoc.gov.au/human_rights/criminalrecord/summary.html

To avoid discrimination on the basis of criminal record, an employer can only refuse to employ a person if their criminal record prevents them from being unable to perform the ‘inherent requirements’ of the job.

Even if a person does have a criminal history, and not having a criminal history is an inherent requirement, not hiring them may still be considered discriminatory. Follow? The person’s age when the conviction occurred, how long ago the conviction occurred, and their behaviour and work references since the conviction can also be taken into consideration.

Here is what we are doing:

-    Require police checks only for positions that are high-risk, not for everyone.
-    Put in place clear policies and communicate the requirement for the frequency of checks and the outcomes to be expected.
-    During the hiring and employment process, communicate that checks will be performed and give individuals the opportunity to tell you anything relevant.
-    Define people, (including legal representation) and procedures for assessing risk and potential discrimination of any routine checks that come across a conviction.

Hope this helps.