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4 Determining the inherent requirements of a job

Under the HREOC Act, an employer can make a distinction against someone with a criminal record if the person’s particular criminal record means that they are unable to fulfil the inherent requirements of the job. Another way of putting this is that an employer can make a distinction against someone if the criminal record is relevant to the job. This conduct does not constitute discrimination under the HREOC Act.

The burden of deciding what is an inherent requirement of the job falls on the employer, but it must be able to be justified objectively.

These Guidelines attempt to provide some assistance to employers in determining the inherent requirements. Employers should note, however, that case law in this area is relatively undeveloped. Also, any findings of discrimination rest greatly on the individual circumstances of the case.

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4.1 When should an employer determine the inherent requirements of the job?

Determining the inherent requirements of a job should be undertaken priorto advertising a job vacancy, as this will determine how a job is advertised and how the job application process will proceed. Deciding the essential or inherent requirements of the job at the start, rather than when a person with a criminal record applies for the job, will help the employer avoid problems and misunderstandings half-way through the recruitment process.

However, under the HREOC Act an employer needs to show not only that they have determined what are the inherent requirements of a job, but also that they have considered whether an individual job applicant or employee meets these requirements.

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4.2 How do you decide whether a criminal record is relevant to the inherent requirements of the job?

Step One: Identify the essential tasks, circumstances and requirements of the job

A good starting point for identifying the inherent requirements of the job with regard to criminal record is to determine the tasks the employee will be required to perform, the circumstances in which the work is to be carried out and any organisational requirements of the job.

For example, for a job transporting valuable goods, the main task may be:

However, the job may also require the employee to:

These may both be inherent requirements of the job although they may differ in relevance for criminal record. The first task will require skills which may have no connection to a criminal record, for example a truck driver’s licence. The second aspect to the job does not require specific skills, but is also essential to the job as a security clearance must be obtained for all those entering the storage centre.

Step Two: Assess whether criminal records are relevant to these tasks and requirements

The next step is to assess whether a certain criminal record may be relevant to the requirements of the job.

The following questions help employers to identify whether a certain criminal record may have an impact on the essential tasks of the job:

  • Does legislation require the employer to ensure that the employee meets certain requirements with regard to criminal record? For example it may be illegal to employ people with a certain criminal record in some occupations, such as working with children.
  • Is a licence or registration essential to the job? Is a criminal record a barrier to obtaining such a licence or registration?
  • Does the job involve one-to-one contact with children or other vulnerable people, such as the mentally ill, as employees, customers or clients? How often?
  • Does the job involve any direct responsibility for finance or items of significant value? If so, to what degree? Convictions for what offences would be relevant?

Note: An employer may conclude that a criminal record is not relevant to the inherent requirements of the job. In that case, it is inappropriate for an employer to consider criminal record in their recruitment process and policies.

Alternatively, an employer may conclude that only certain types of offences are relevant to the job, and to structure any questions to reflect this.

If an employer decides that a criminal record may be relevant to the inherent requirements of the job, he or she should then follow best practice for conducting criminal checks outlined in Section 5.

The inherent requirements should be reflected in any selection criteria and job information for job applicants. An employer should be clear about what are the essential, as opposed to desirable, criteria and ensure that any essential elements are set out clearly for job applicants. See also the Commission’s best practice guidelines for recruitment and selection of employees at http://www.humanrights.gov.au/info_for_employers/best_practice/recruitment.html.

Example of Commission complaint: inherent requirements

 Summary of complaint: The complainant alleged that he was dismissed from a position as a project officer with a community arts organisation due to his criminal record. He claimed that during the interview process for this position he was not asked about his criminal record nor asked to fill out a criminal record check. He did not disclose any convictions.

After about ten weeks of employment the complainant was told that one of his projects involved visiting detention centres and prisons, for which it was compulsory to obtain a security clearance from corrective services. When the security clearance was sought, the employer realised that the complainant had a criminal record and told him that his employment was to be terminated for this reason.

Response: The employer argued that, because visits to prisons are part of the project, passing a security clearance is an inherent requirement of the position. The employer also argued that the complainant was told about this aspect of the work in the interview and did not indicate that gaining a security clearance for visits to prisons would be a problem.

Outcome: The Commission declined the complaint on the basis that there had been no discrimination. The Commission found that passing the security clearance was an inherent requirement of the position.



Step Three: Assess an individual criminal record against the inherent requirements of the job

If an employer has determined that a criminal record is relevant to the inherent requirements of the job, and has advertised accordingly, an employer needs to assess the applications from people with a criminal record on a case by case basis.

Each job applicant should be assessed firstly on their ability to do the job and then on the relevance of their criminal record to the job applied for. Only short-listed applicants should be asked to disclose their criminal record.

How to assess a job applicant’s or employees criminal record against the inherent requirements of the job is discussed more fully in Section 5.9.

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4.3 Some key principles in case law for assessing inherent requirements

Since each job and each person’s criminal record is different, there is no steadfast rule in determining the inherent requirements of a particular job and whether a person cannot meet these requirements because of their criminal record. The inherent requirements exception has been considered by the International Labour Organisation, the Australian courts and by the Commission in its consideration of complaints. These cases are not necessarily about criminal record discrimination, as the inherent requirements exception is also relevant for a number of other grounds of discrimination. While the cases do not reveal any simple test, the following principles appear to represent the current state of the law:

  1. An inherent requirement is something that is ‘essential’ to the position rather than incidental, peripheral or accidental.20
    Justice Gaudron of the High Court has stated that

    [A] practical method of determining whether or not a requirement is an inherent requirement … is to ask whether the position would essentially be the same if that requirement were dispensed with.21

  2. The burden is on the employer to determine the inherent requirements of the particular position and consider their application to the specific employee before the inherent requirements exception may be invoked.22

Broad general statements about a job’s requirements are not clear enough to allow for an assessment of inherent requirements. Further, an employer needs to consider the application of inherent requirements to a specific employee on a case by case basis, rather than trying to draw a connection between the inherent requirements and any presumed characteristics of people with a criminal record.

Case example: Zraika v Commissioner of Police23

Mr Zraika’s application to join the NSW Police was rejected because of his impaired vision in his left eye. Mr Zraika claimed he had been discriminated against on the grounds of disability, while the NSW Police argued that with his visual impairment he would be unable to carry out the duties of police officer with the necessary diligence and safety. However, the Tribunal found that

The respondent has not satisfied us that at the time he rejected Mr Zraika’s application that he (the respondent) had identified the inherent requirements of the position of a police officer. The only evidence concerning the respondent’s determination of the inherent requirements of a police officer, as at 11 October 2002, was the entries on the medical professional suitability application form which have been reproduced at [16] and [17] above. Those entries are too broad and too general to be considered an adequate description of the inherent requirements of an operational police officer. They are not capable of being used as any sort of reasonable yardstick against which an applicant with some loss of visual function, such as Mr Zraika can be assessed.24
  1. The inherent requirements should be determined by reference to the specific job to be done and the surrounding context of the position, including the nature of the business and the manner in which the business is conducted.25

Case example: Christie’s Case

Although the Christie case related to age discrimination, not criminal record discrimination, it established important principles on what are the ‘inherent requirements’ of a job. Mr Christie claimed he had been discriminated against on the basis of his age when he was terminated from his job as pilot with Qantas, on reaching 60 years of age. Due to international restrictions on the age of pilots, Mr Christie was not able to pilot international flights. The High Court found that Mr Christie could not meet the inherent requirements of the position of pilot because it was an inherent requirement of the job to be able to fly international routes. Although Mr Christie may have been able to perform the specific task of flying (and could do so for Qantas on domestic routes) he was not able to perform the inherent requirement of the ‘position’ to fly international routes. Hence the ‘inherent requirements’ included the surrounding context of the job, not merely his physical or mental capacity to perform the task.

  1. There must be a ‘tight correlation’ between the inherent requirements of the particular job and an individual’s criminal record. There must be more than a ‘logical link’ between the job and a criminal record.26

Case example: Christensen’s Case

Ms Christensen’s application to work as bar attendant at the Adelaide Casino was rejected because of a conviction for stealing two bottles of alcohol from a shop when she was 15 years of age. She complained to the Commission of discrimination on the basis of criminal record. The Casino argued that it was an inherent requirement that bar staff be of good character and trustworthy and that her offence showed that she was not able to fulfil these requirements. The Commission found that there was not a sufficiently close connection between the requirement that the holder of the position of bar attendant be trustworthy and of good character and the rejection of her application based on her criminal record.

There was information available to the respondent regarding Ms Christensen’s trustworthiness and ability to perform the inherent requirements of the job. Ms Christensen’s conviction occurred some seven or eight years before she made her application for employment with Adelaide Casino. She was about 15 years of age at the time of her conviction. I note there were factors the Casino didn’t take into account that would to me seem far more relevant to, and probative of, the question of whether she was trustworthy and of good character, than her criminal record …there has been no suggestion that she has been anything but trustworthy and honest in these [other ] positions …I am of the view that in the circumstances of this complaint the connection between the rejection of Ms Christensen’s application on the basis of her criminal record and the inherent requirements of trustworthiness and good character is not tight or close … ’.27
  1. The inherent requirements exception will be interpreted strictly so as not to defeat the purpose of the anti-discrimination provisions.28

The Full Federal Court of Australia described the purpose and operation of the HREOC Act as follows:

Respect for human rights and the ideal of equality – including equality of opportunity in employment – requires that every person be treated according to his or her individual merit and not by reference to stereotypes ascribed by virtue of membership of a particular group… These considerations must be reflected in any construction of the definition of ‘discrimination’ … because, if they are not, and a construction is adopted that enables the ascription of negative stereotypes or the avoidance of individual assessment, the essential object of the [Human Rights and Equal Opportunity Commission] Act to promote equality of opportunity in employment will be frustrated.29

Top 4.4 Can occupational health and safety be considered part of the inherent requirements of the job?

It may be an inherent requirement of the job that a person not pose an unacceptable risk to the occupational health and safety of other workers, or to themselves. For example, a job applicant for a bus driver position with a number of serious traffic offences may pose an unacceptable risk to others working on the bus.

Case example: Inherent requirements and health and safety risk to others

In X v Commonwealth30, the High Court of Australia considered the meaning of inherent requirements with respect to health and safety. X initially made a complaint of disability discrimination to the Human Rights and Equal Opportunity Commission, whose finding was overturned by the Federal Court. The High Court dismissed an appeal by X.

X enlisted as a general enlistee with the army. After he had commenced recruitment training, a blood test revealed he was HIV positive, and as a result he was discharged in accordance with defence policy. The Commonwealth argued that he could not carry out the inherent requirements of the job, not because he was physically incapable, but rather that he posed a risk to other soldiers by reason of his HIV infection. The High Court found that it is permissible to have regard to the health and safety of others when considering the requirements of the employment. Certain issues will ordinarily have to be addressed in this assessment, such as the degree of risk to others, the consequences of the risk being realised, the employer’s legal obligations to co-employees and others, the function which the employee performs and the organisation of the work.31

However, an employer should be careful not to resort to stereotyping of people with certain types of criminal record. Individual assessment will still be necessary to assess whether or not a person can meet the inherent requirements of the job.

Further, an employer should not use occupational health and safety concerns as an excuse to exclude people with a certain criminal record when these health and safety concerns are peripheral to the job.

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4.5 Can it be an inherent requirement of a job that employees be of good character and trustworthy?

It can be an inherent requirement of a job that an employee be of ‘good character’ and ‘trustworthy’. These requirements are common in public sector employment, industries with specific regulation such as racing or gaming, and in the licensing and registration of specific occupations such as nursing.

For example, in a complaint to the Commission (the Christensen’s Case), the Commission found that trustworthiness and good character were inherent requirements of the job of bar attendant at the Adelaide Casino. However, the Commission found that the connection between the rejection of Ms Christensen’s application on the basis of her criminal record and the inherent requirements of trustworthiness and good character was not tight or close in her case, and hence found that the casino had discriminated against her.

A similar requirement to ‘good character’ is the requirement to be ‘a fit and proper person’.

Case example: Deciding whether a legal practitioner is a ‘fit and proper’ person32

In the High Court case, A Solicitor v The Council of the Law Society of New South Wales, a solicitor appealed against a decision of the Court of Appeal of New South Wales which found that he was guilty of professional misconduct and was not a fit and proper person to be a legal practitioner.

The solicitor was convicted in 1998 of aggravated indecent assault of two of his stepdaughters and informed the Law Society of those convictions. However, he failed to disclose to the Law Society of New South Wales that he had been convicted of further charges of aggravated indecent assault in 2000, at a time when the Law Society was considering whether disciplinary action should be taken against the solicitor in regard to the first convictions. The second set of convictions was eventually quashed.

The Court held that while the solicitor was guilty of professional misconduct due to his failure to disclose the second set of convictions, he remained a fit and proper person to be a legal practitioner.

The Court said that:

The conduct of the appellant in committing the acts of indecency towards the two complainants in 1997 did not occur in the course of the practice of his profession, and it had no connection with such practice ... the nature of the trust and the circumstances of the breach, were so remote from anything to do with professional practice that the characterisation of the appellant’s personal misconduct as professional misconduct was erroneous.33

An employer must be wary of making an unwarranted presumption that a person’s criminal record determines their character. The case law states that the mere fact of a criminal record does not determine a person’s character and that the passage of time can heal past wrongdoings.34

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4.6 Workplace or industry-wide requirements

Some employers have identified similar inherent requirements for a number of different jobs across one workplace or industry. In those cases an employer may decide to follow a similar recruitment process. For example, a financial organisation may have a number of different jobs with responsibility for dealing with financial transactions. The employer may decide that offences of dishonesty and theft are relevant to all these types of jobs within the organisation and advertise and apply a similar recruitment process with respect to criminal record checks.

Public service employment and licensing and registration bodies also often wish to apply a similar requirement across a range of occupations, such as the requirement to be of good character.

However, it is important to keep in mind that the inherent requirements principle still requires an assessment of a person’s individual circumstances to be weighed up against the job being performed. If not, there is a danger that discrimination will occur.

Example of Commission complaint: Applying for a licence as a stable hand (Hall’s Case)

Mr Hall was required to be licensed by the Thoroughbred Racing Board in order to work as a stable hand. When he made his licence application he failed to disclose his prior convictions, which included traffic offences and wilful and obscene exposure. When his record was discovered he was stood down from his job and was subsequently refused a licence by the Board.

The respondent argued to the Commission that it was an inherent requirement of a stable hand not to have a criminal record because public confidence is important to the racing industry, and the maintenance of public confidence depends in part upon the honesty and integrity of persons associated with that industry. However, the Commission found that this general statement was not sufficient to establish that a criminal record was relevant to the job of stable hand.

Although it may establish that the inherent requirements of each particular job in the racing industry will include requirements that may be broadly labelled as ‘fitness and propriety’ requirements, the precise content of those inherent requirements must be considered in respect of each job.

It is quite unsatisfactory to approach this issue in terms of ‘industry wide’ requirements. This is supported by the ILO Committee of Experts who have indicated that it is reluctant to apply the ‘inherent requirement’ exception to an entire profession .35

Notes

20 See for example X v The Commonwealth [1999] HCA 63 (2 December 1999) (X’s Case), Qantas Airways v Christie (1998) 193 CLR 280 (Christie’s Case) or Hall’s Case p32, 34.

21 Christie’s Case, Gaudron J.

22 Hall’s Case p36, S Selleck, ‘Criminal Records Discrimination – When the Law Speaks with a Forked Tongue’, paper presented to CSEPP consultants, 26 May 2004, p10 ( S Selleck); Zraika v Commissioner of Police, NSW Police (2004) NSW ADT 67.

23 This case illustrates inherent requirements principles, although it did not involve criminal record discrimination.

24 Zraika v Commissioner of Police , NSW Police (2004) NSW ADT 67, at 40.

25 X’s Case at 208, Also Christie’s Case, Hall’s Case p33, S Selleck p10.

26 Hall’s Case p35-36; S Selleck p13;Commonwealth v Bradley (1999) 95 FCR at 237 per Black CJ. See also Wall v NT Police Services, Anti-Discrimination Commission, 14 March 2005 (Wall’s Case). In this case the Anti-Discrimination Commissioner found that the NT Police had not demonstrated a ‘tight correlation’ between the purported inherent integrity requirement of the police service and the complainant’s spent criminal record, 5.3.5.

27 Christensen’s Case, pp2o—21.

28 See also Hall’s Case p34-5, S Selleck p10, Wall’s Case, p18.

29Commonwealth v Bradley (1999) 95 FCR 218 at 235 per Black CJ. See also Commonwealth v Human Rights and Equal Opportunity Commission and Ors (1998) 158 ALR 468 at 482, per Wilcox J.

30 X’s Case. Although it illustrates inherent requirements principles, this case did not involve criminal record discrimination.

31 X’s Case, Gleeson C J at 43.

32A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1 (4 February 2004).

33 A Solicitor v The Council of the Law Society of New South Wales (2004) HCA 1 (4 February 2004) at 32.

34 For example, see Z v Director General, Department of Transport [2002] NSW ADT 67 at 30-32.

35 International Labour Organisation, Fundamental rights at work and international labour standards, Geneva, International Labour Office, 2003. See also Hall’s Case.

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