Criminal records are one of those inherently awkward topics. How could they not be? As a society, we are pretty well trained to be wary of people with criminal records, regardless of what those criminal records contain, or whether they have served their punishment for them.
It instantly colours our perception of someone, fairly or unfairly, and that can lead to systemic unfairness and disadvantage for people on the receiving end – everyone deserves a chance to work for a living. But still, for some jobs, you have to know, and sometimes someone’s past misdeeds should and do disqualify them from certain roles. So how should you, as a recruiter, navigate the minefield of a candidate’s potentially unsavoury past?
If You Have To Ask, Ask
Sometimes, it is both out of your hands, and the right thing to do.
Obviously, some jobs require a police check and the due diligence of you, the recruiter, and people with criminal histories need not apply. Nobody is going to question you doing your job properly and making sure that your client or business is getting people who are complicit with the laws governing that role.
So go through that rigmarole – let your candidates know there will be a police check, run that check, ask during the interview if you feel it necessary. As long as you have been totally clear and upfront about the requirements of the role, there is really nothing else you can – or indeed should – do.
But what happens when the role doesn’t require you check for a criminal record? Aren’t you just being diligent and forward-thinking by asking?
Be wary of relying on criminal records
Be careful when rejecting a potential candidate based on their previous criminal records unless you can prove that the person is unable to fulfil the specific and inherent requirements for the job.
For example, a record of violent crimes would prohibit offenders from working in carer roles. Similarly, it would be reasonable for a financial institution, such as a bank, to reject a candidate with a criminal record that involved financial fraud.
Conversely, a speeding conviction should not prevent a candidate from being selected for an administrative role.
Always assess these situations on a case-by-case basis by looking at the nature of the criminal record and the requirements of the job. It is not discrimination if a candidate’s criminal record meant that he/she is unable to perform the inherent requirements of a role and vice versa.
Know your legal rights
As a diligent Talent Acquisition professional, it makes good sense for you to be aware of the latest federal and state legislations surrounding employment.
Currently, only Tasmania and the Northern Territory have laws that specifically prohibit discrimination on the basis of criminal records. In Western Australia and the ACT, there are provisions that make discrimination on the basis of “spent” convictions unlawful. Criminal record discrimination is not specifically prohibited by law in the rest of the States and Territories.
However, this does not mean you can go all blasé rejecting any candidates with criminal records as you may still be liable to complaints under the HREOC Act. Seeking employment legal advice might be a good way to avoid these issues.
Remember who has the power
First things first – though it is completely legal to ask about a candidate’s criminal history in an interview, it is illegal to discriminate against a job candidate because of their criminal history, unless you have a specific legal reason for doing so. Hopefully for most people out there, that‘s reason enough not to do it.
But the unfortunate and disturbing truth is this: there is almost no way a candidate can prove that they were discriminated against because of their criminal history. This means that, even if it is unrelated to the job, a candidate’s criminal history being brought up in an interview is likely to torpedo their chances with no hope for redress on their part.
The reason I bring this up is simple: remember the power you have over this person’s prospects. Reintegrating into society is hard enough without the spectre of current or potential joblessness hanging over your head every day for the rest of your life.
Use your own judgement
Recruiters are expected to find good fits for a role. Is the candidate skilled enough? Are they experienced enough? Are they a good culture fit? All these things are things recruiters already have to figure out before they hire a candidate.
You are trained in reading people and assessing their suitability – use those skills. A person’s criminal past might inform bad behaviours, but those should be obvious to you regardless of whether or not you know about their history. You’ve sniffed out bad candidates before, right?
What it boils down to is this: if you’ve got no reason to reject a candidate with a criminal history, why would you? Don’t let your prejudice cost someone what might be a chance to rebuild their life.
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