The number of employers requesting criminal record checks is on the rise with 2.7 million requests between 2009-2010. This is an increase of 70% according to Professor Marilyn Pittard from Monash University. While criminal history checks are mandatory in some industries such as when working with children, more employers are choosing to use them as part of the recruitment process even when they are not obliged to.

Anti-Discrimination provisions regarding discrimination in employment on the basis of a criminal record are found in Federal and some State and Territory Laws (not in NSW). This raises a number of concerns for employers regarding whether employers can conduct a criminal record check or ask a prospective employee or employees about a criminal record.

We previously addressed in our fact sheet – titled “Discrimination Laws and Criminal records” that in order for an employer to avoid a claim of discrimination on the basis of a prospective employee or employee having a criminal record, an employer should consider whether the existence of a criminal record prohibits the employee from performing the inherent requirements of the job. An inherent requirement is something that is ‘essential’ to a position rather than incidental or peripheral.

In circumstances where a criminal record check has not been conducted, an employer can still ask a prospective employee or employee to disclose a criminal record. In such circumstances however, it is recommended that there be a connection between the requirements of a particular job and the request for information about a criminal record. It should be noted however, that there is no absolute requirement for a prospective employee or employee to answer a question in relation to a criminal record or to disclose a criminal record.

Pittard believes that the increase in criminal record checks reflects that they are being “increasing used as a recruiting tool by employers, even where there are no mandatory requirements for checking criminal histories”. The Fair Work Act 2009 (“the FW Act”) does not provide that the requirement of “irrelevant criminal record checking in respect of a prospective employee or employee” be a protected ground of discrimination, however, the Australia Human Rights Commission Act (Cth) (“AHRC Act”) may find that certain conduct constitutes discrimination; although the AHRC Act does not make the conduct unlawful.

Whilst the Fair Work Act has not addressed the requirement of an irrelevant criminal record check as a protected ground of discrimination, employers should nevertheless consider the contextual requirement of conducting such a check in the greater context of the industry of the employer (and whether such a requirement is reasonable), the job the employee will be performing and other relevant considerations.