Inherent or relevant: changes in assessing job applicants with criminal records

In brief 1 min read

The federal law test to assess job applicants with criminal records has changed. It's no longer necessary to show that the criminal record means an applicant is unable to perform the 'inherent requirements' of their role – the question is whether the criminal record is 'relevant' to the role.

Key takeaways

• Under the new law, if an employer wants to reject an applicant because of their criminal record, it will need to show that the criminal record is 'relevant' to the job.
• This should be easier than the previous test – showing that a criminal record means an employee is not able to perform the 'inherent requirements' of the job.

Background

The amendment is in response to a decision earlier this year.¹ The Australian Human Rights Commission decided Suncorp had discriminated against an applicant when it revoked an offer of employment because of the applicant's criminal record for accessing child pornography. The job was for a 'Work@Home' consultant in Suncorp's insurance business. However, Suncorp had not demonstrated that the conviction meant the applicant was unable to perform the 'inherent requirements' of the job – being something essential to the position. As this case demonstrates, it can be difficult to prove that a criminal record results in an inability to perform an essential aspect of a job.

The new test asks whether the criminal record is 'relevant' to the job, and the suggestion is that relevance is tied to an employee's suitability for the role. The aim is to better balance the right of those with a criminal record to find a job with the right of employers not to employ someone who is unsuitable. This reflects the position in anti-discrimination legislation in Tasmania, the Northern Territory and the Australian Capital Territory. Given the lack of decisions in these jurisdictions about whether a criminal record is relevant to a role, it will be interesting to see the developments in this area.