Should Employers be Allowed to Discriminate based on a Criminal Record?

The Australian Human Rights Commission (AHRC) has delivered its long-awaited report on the case of BE v Suncorp Group Ltd [2018] AusHRC 121, which raised important questions regarding discrimination against employment applicants based on their criminal records.

Human rights law

Section 3(1) of the Australian Human Rights Commission Act 1986 defines discrimination as:

• any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
• any other distinction, exclusion or preference that:
• has this effect; and
• has been declared by the regulations to constitute discrimination for the purposes of this Act;

The definition expressly excludes any distinction, exclusion or preference:

• in respect of a particular job based on the inherent requirements of the job; or
• in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.

Significantly, regulation 4(a)(iii) of the AHRC Regulations 1989 makes it clear that any distinction, exclusion or preference made on the basis of a criminal record constitutes discrimination under the Act.

BE v Suncorp Group Ltd

The case of BE v Suncorp Group Ltd concerned a job applicant, known as Mr BE, who claimed to have been refused employment by Suncorp due his criminal record.

The facts of the case were that in November 2015, Mr BE applied for a job with Suncorp where he would be working from home as an insurance ‘claims assistant consultant.’

Several years before the application, Mr BE had been convicted of accessing and possessing child pornography, an offence for which he received a suspended prison sentence and a fine.

Mr BE disclosed his criminal record prior to the interview, and nevertheless received a conditional offer of employment.

He consented to a criminal history check, but Suncorp withdrew its conditional employment offer after the check had been been undertaken, explicitly citing the conviction as a reason for the withdrawal.

Suncorp claimed Mr BE’s criminal record prevented him from meeting the position’s requirements of trustworthiness and good character.

The company identified three aspects of the role that Mr BE could not fulfil because of his criminal record.

1. Dealing with confidential customer information;
2. Working unsupervised with technology and the internet; and
3. Advancing community partnerships which promote the wellbeing of young people.

Unsupported reasoning

After carefully considering the role and Mr BE’s history, the AHRC concluded that each of Suncorp’s reasons for withdrawing the offer were unfounded.

In relation to point 1, the Commission found that while Mr BE’s crimes were very serious, they were not relevant to the handling of confidential information as they were not offences of dishonesty such as fraud or larceny. It noted that Mr BE had several years of work experience handling confidential information, during which no concerns were raised.

The Commission also found the second point to be invalid, as all of the company’s remote employees had their internet usage monitored by the company’s IT team. Indeed, this was a prerequisite of accessing the company’s systems.

Finally, the AHRC noted that the role did not require Mr BE to participate in the relevant community partnerships. It therefore found that these partnerships had nothing to do with his ability to fulfill the job requirements.

The President of the Commission ultimately found that Mr BE could indeed fulfil the requirements of the role, and that the withdrawal of the conditional offer amounted to discrimination under the Act.

The Commission recommended that Suncorp pay $2,500 in compensation, but such recommendations are not legally enforceable and Suncorp refused to pay.

Criminal record discrimination is costly to the community

A Productivity Commission report released earlier this year noted that inmates can find it difficult to secure gainful employment due to discrimination based on their criminal history.

It found that almost 45% of people released from prison in 2014/15 had reoffended, and were back behind bars within two years.

A 1987 report by the Australian Law Reform Commission, entitled ‘Spent Convictions’, identified the difficulties of former offenders in finding employment, something which it found increases the likelihood of recidivism.

The report suggested that making it unlawful to discriminate against applicants based on their criminal histories could alleviate the problem.

“If discrimination on the ground of criminal record is to be taken seriously, effective remedies are needed. Complainants need enforceable rights and formal enforcement mechanisms”, the report stated. It recommended that Commonwealth legislation be enacted to prohibit employers from enquiring about a job applicant’s or employee’s criminal history.

In the upshot, the government included “criminal record” into the definition of “discrimination”.

However, no prohibition against enquiries, offences or enforceable sanctions were introduced – effectively giving the green light to such discrimination.