Discrimination against an employee with a 'spent' conviction is against the law

As employers widen the net to fill job vacancies, people who have a criminal history may appear on the radar. While some employers might feel that an individual with a past conviction is not the right fit for their organisation, there are some limitations on the decisions an employer can make, and obligations regarding how those individuals are to be treated.

Spent convictions

In NSW, some convictions can become “spent”, which means it is no longer on an individual’s criminal record. However, convictions for which a prison sentence of more than six months was imposed, or for sexual offences, cannot become spent and will remain on an individual’s record, says Kirryn West James, director at legal firm People + Culture Strategies.

A conviction can become spent if:

• an individual is crime free and not in prison for 10 years as an adult;
• there is a finding that an offence has been proved, or that a person is guilty of an offence, but there is no conviction (for example, the offender is put on a good behaviour bond, intervention program, or other court conditions);
• there is an order of the Children’s Court dismissing a charge and administering a caution; or
• the conviction is for an offence that has ceased, by operation of law, to be an offence.

However, employers may not be aware of a spent conviction during the recruitment process, as under the Criminal Records Act 1991 (NSW), individuals are not required to disclose any information regarding their spent conviction. Nor do they need to refer to their prior conviction as a conviction for the purposes of character or fitness tests, says West James.

If employers do become aware of a prior conviction that is now spent, there are obligations regarding how that person is to be treated.

Irrelevant criminal record

Spent convictions, and convictions that have not been spent and still appear on an individual’s criminal record may constitute an “irrelevant criminal record” and fall under the definition of discrimination for the purposes of the Australian Human Rights Commission Act 1986 and the Australian Human Rights Commission Regulations 2019. Although both acts do not define an “irrelevant criminal record”, it is generally understood to mean an individual’s criminal history that does not relate to the employment role or duties.

“For example, if a role required a substantial level of integrity and trust, then an individual’s criminal history of dishonesty offences may be considered relevant. However, the same criminal history would be irrelevant for a role that did not require such integrity,” West James says.

Under the AHRC Act and the AHRC Regulations, any distinction, exclusion or preference on the ground of an irrelevant criminal record will be considered discrimination.

“Employers need to be wary of any distinction, exclusion or preference on the grounds of either a spent conviction or irrelevant criminal record, during all points of an individual’s employment. This includes the recruitment process, decisions to promote an employee or terminate an employee’s employment and generally regarding terms and conditions of their employment,” West James says “Employers should also ensure that individuals are not subjected to disparaging comments by other employees regarding their criminal history.”

What should employers do?

The AHRC recommends the following procedures:

1. employers should have a written policy and procedure regarding treating people with a criminal history fairly and in accordance with anti-discrimination laws
2. employers should implement training of staff regarding rights of employees and job applicants to be treated without discrimination
3. employers should implement a grievance and complaints procedure for employees if they feel discriminated against