DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL
RECORD
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Submission No. 73 - Legal Aid Queensland
SUBMISSIONS ON DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF
CRIMINAL RECORD
This submission has been prepared in response to the Consultation Paper dated December 2004.
2(a) Employers with a successful track record of employing people with criminal records
There are employers who are willing to employ people with criminal records which we are able to identify through our representation of clients on bail applications and in criminal law proceedings. The general areas of employment from which they usually come are labouring, trade assistants on building sites (eg tilers, carpenters etc), work on farms such as fruit picking and work in abattoirs. Charities who assist former prisoners such as Salvation Army should be able to identify further employers. We are not aware of any employers in other types of employment who regularly offer employment to people they know have criminal records.
2(b) Practical difficulties facing people with criminal records who are
seeking employment
People with criminal records often feel uncertain as to whether they are lawfully required to disclose criminal convictions or not when seeking employment. They may be uncertain or unaware of the categories of employment for which criminal history must be disclosed and which types of convictions must be disclosed. They may be unaware of the spent convictions legislative provisions.
If the job applicant is asked about criminal history which he or she is not lawfully obliged to disclose and refuses to answer he or she most likely will not get the job. Similarly if the job applicant exercises a lawful right to refuse to sign a consent for the employer to obtain a criminal history check he or she will most likely not get the job.
If the job applicant lies about his or her criminal history when asked and the employer finds out later through another source, the employer then has an additional excuse for dismissing the employee, namely dishonesty.
2(c) How do people with criminal records address the difficulties they encounter in seeking employment
It is the experience of LAQ lawyers and social workers that people with criminal records are fearful about seeking employment because on the basis of their past experiences and those of their acquaintances they assume that they will not get the job. People with criminal histories may avoid applying for employment for which they are qualified and capable because of a perception that their criminal history will automatically preclude them as a potential employee in the eyes of the employer. This is detrimental to the job seeker. A stable job in which a person is interested and challenged is probably one of the best forms of rehabilitation from offending behaviour.
Others people lie about their criminal histories when seeking employment in the hope they won't be found out, whilst others neglect to mention convictions that they don't believe are relevant to the job. Others may seek legal advice or advice from probation or parole officers.
Apart from convictions a person can lawfully deny, the best advice in the present circumstances that we can give our clients is to disclose criminal history but advance an argument as to why it should not be used to reject the person's application for employment. Unfortunately, in our experience, it takes an exceptional employer to deal with such a submission on the merits when they have a choice between a person with suitable experience and qualifications and a criminal history not directly relevant to the position and a person less qualified but suitable for the position with no criminal history.
2(d) What special difficulties face juveniles with criminal records
Juveniles face all of the same problems as adults. The likelihood of criminal history being unfairly held against juveniles in an employment situation is even higher than adults. Juveniles can be immature in their judgements and act impulsively. Past behaviour, even as little as a year or two earlier is an extremely poor indicator of future behaviour in many cases. This can also be the case with young adults but a juvenile in his or her teenage years can mature quite rapidly. As in all forms or learning, juveniles have a greater capacity to benefit from education and rehabilitation.
In addition juveniles often do not have the confidence, resources or experience of life to confidently assert that their criminal history is not relevant to the employment applied for.
Juveniles are also apparently susceptible to criminal history being used as an excuse to dismiss or reject a person from employment to mask a real reason which may be unlawful. An example which was recently brought to our attention was a juvenile who had been employed for a period of 12 months when the employee informed her employer of a fact upon which Queensland anti-discrimination legislation makes it unlawful to discriminate. The employee had not received any complaints about job performance. Upon receiving the advice about the above mentioned fact, the employer launched an "investigation" and discovered that the juvenile had been charged with a criminal offence and dismissed the juvenile.
Current Queensland law would enable the juvenile to appeal against the unfair dismissal to the Industrial Relations Commission or to make a complaint to the Anti-discrimination Commission regarding unlawful discrimination on what we suspect is the real reason for the dismissal. There is no Queensland legislation prohibiting discrimination on the grounds of criminal record. The juvenile's only option is to make a complaint to HREOC knowing that the Commission's recommendations are not legally enforceable unless it can be proven that criminal history was not the reason for the dismissal and but for the unlawful reason the employer would not have dismissed the juvenile. A complaint has been made to HREOC.
2(e) What special difficulties face indigenous people with criminal records?
Statistics indicate that indigenous persons are over represented in the criminal system. Indigenous people already face significant disadvantages in obtaining employment. They will still sometimes face racial discrimination and criminal record may be used as a mask for racial discrimination. This can result in large numbers of indigenous people not being able to obtain employment. This can have a detrimental effect on the morale of a whole community. Because there is no legislation regarding discrimination on the ground of criminal record together with legally enforceable measures to prevent it, success for an indigenous person in receiving any sort of enforceable redress for discrimination will depend upon their ability to prove that they have been discriminated against on the grounds of race, sex or disability contrary to Commonwealth legislation providing legally enforceable remedies or other unlawful reason as outlined in the Anti Discrimination Act Queensland.
Many of the difficulties discussed in relation to indigenous persons would also be faced by persons of different ethnic non-English speaking backgrounds. An actual case in point is a person from a non English speaking background was recruited from a drug and rehabilitation programme by a government department /agency for a traineeship. The person claims to have disclosed his criminal record to the person to whom he applied for the position but was nevertheless accepted. Regardless of whether he disclosed the conviction or not, the likelihood of him having a conviction for a drug related offence was fairly obvious. A person more senior in the department/agency found out about the conviction and gave notice of an intention to cancel the traineeship.
It was only because the person obtained legal assistance and was assisted with the show cause process through the Department of Employment, Education and Training that the Department was instructed to continue the traineeship. At the time he received legal advice the person was on the verge of giving up on the traineeship or of receiving any form of redress. He did not have the capacity to put together grounds of appeal himself because of his language difficulties. The criminal record which was a conviction for drug offences was not substantially relevant to the particular position. Also the trainee had, as the employer well knew, successfully completed a rehabilitation programme.
2(f) Why might employers be reluctant to employ someone with a
criminal record.
There is significant stereotyping of people with criminal records as being dishonest, unreliable, irresponsible, or having poor impulse control irrespective of the actual offences of which they have been convicted. Many employers have no idea whatsoever of the wide definition of many offences and the types of behaviour which may not be particularly serious but might nevertheless still constitute an offence. Employers sometimes also have no concept of natural justice and do not afford employees or potential employees the opportunity to explain the circumstances surrounding their criminal record. Because employees or job applicants are often not given the opportunity to discuss their criminal record with the employer, the employer is not in a position to make a realistic assessment of whether the criminal history is relevant to the job. Employers may also be unaware of rehabilitation programmes and the potentially beneficial effect of same on future behaviour.
Many employers arguably rely too heavily on criminal records as an indicator of suitability or otherwise for a job and do not utilize other sources of information such as employment history and employment and character references. They may be of the often mistaken view that criminal history is a more reliable and indisputable indicator of suitability.
2(g) What behaviour might address ongoing stereotyping of people with criminal records in the workplace.
Education may assist in fighting stereotyping. This could be undertaken at the time of registration of a business name or registration of a work place. This education could include basic information about common criminal offences, the effect of rehabilitation and introduction to the concept that a person should not keep being punished beyond the court penalty purely on the basis of criminal record. Stories about successful rehabilitation of offenders could be included. Information should also be given about natural justice. Legislative provisions with legally enforceable measures would also assist as a preventative measure.
3(a) Are there currently sufficient legal protections against discrimination in employment on the basis of criminal record?
No, there is currently no legally enforceable protection against discrimination in employment on the grounds of criminal record. The only avenue available is a complaint to HREOC, the recommendations of which are not enforceable.
3(b) if additional protection is required, what form should it take?
Legislation needs to be introduced at both federal and state level in a form similar to the Northern Territory legislation. That is, it should be legislated to make discrimination on the grounds of irrelevant criminal record unlawful. The legislation should also compel an employer to give an employee or potential employee the opportunity to explain the circumstances of their criminal record and to argue that it is not relevant to the job if the employer asks about criminal record or requests consent for a criminal history check.
3(c) What remedies should be available
The same remedies currently available for other forms of unlawful discrimination should be made available for persons discriminated against in employment on the grounds of criminal record.
3(d) What difficulties face a person with a criminal record who wishes to use the current anti-discrimination legislation and what can be done to overcome this?
Many people, including lawyers are unaware of the HREOC legislation and the ability to make a complaint to the Commission. Persons who are educationally or linguistically disadvantaged may not have the ability to make a written complaint. HREOC's recommendations are not legally enforceable and for this reason may not attract priority for legal funding from Legal Aid Commissions and Community Legal Centres. HREOC's recommendations at the very least need to be made legally enforceable and specific funding grants allocated to assist people to make complaints.
We are unable to comment on practical difficulties with the operation of the state and territory legislation in Tasmania and Northern Territory.
4(a) Do employers and employees understand the categories of information that might be included or excluded on a criminal record check provided by police.
In our experience, most employees do not understand what will be on a criminal history check. Most believe an unrecorded conviction will not be included and many have a vague idea that convictions obtained more than 10 years ago may not be disclosed. It is difficult to say what employers are likely to believe as we do not advise or act for employers in industrial or discrimination matters. Some employers would no doubt be aware, particularly if their business is in the area of security, they require a liquor license or they employ people to work with children. Others where criminal record is not highly relevant and criminal history checks are done more as a precaution may not know much more than the average employee.
4(b) When requesting a criminal history check, do employers seek information about specific offences or do they request a general review?
We have never heard of an employer asking for information about specific offences. We believe that a general check is almost always asked for. This is not desirable given that in many circumstances it is a mere fishing expedition with very little forethought given as to what convictions might be actually relevant.
4(c) What difficulties have employees and employers encountered in obtaining criminal record checks.
We have not heard of any particular difficulties except sometimes delay. We have heard of some quite unacceptable delays of the Commission for Children and Young People dealing with blue card applications.
4(d) Have there been any instances where a criminal history has been done without consent.
We have not heard of any official criminal history checks being done without consent but we have heard examples where there is a suspicion that police officers have released information about criminal history in circumstances where either consent had not been obtained or additional information was released which should not have been, such as unrecorded or spent convictions. For example we have heard of an employer finding out about an unrecorded conviction of an employee. No consent had been obtained to do a criminal history check. It was not an occupation where special disclosure was required so the unrecorded conviction should not have been disclosed on a criminal history check anyway.
5(a) In what occupations might a criminal record be a relevant ground for excluding a person from employment, licensing or registration? What criminal record would be relevant?
In some occupations, public confidence is essential as is the person showing respect for the law. For example, there is clearly justification for all criminal history to be disclosed in relation to police and lawyers, although specific circumstances should always be taken into account.
For other particular occupations and registrations specific types of criminal history would be relevant but not necessarily all. Dishonesty or violent offences would be relevant in the security industry. In the retail industry or any employment involving the handling of money dishonesty offences would be relevant.
For child related employment (involving contact with the children). Sex offences, drug offences and violent offences, particularly against children would be relevant. There is no justification for all criminal history excluding employment in this area. Even in the three areas nominated, convictions should not be automatically considered to exclude the person irrespective of how long ago the conviction was and how serious the circumstances were.
It is difficult to see how a conviction for possession of cannabis 10 years or more ago make someone unsuitable to work with children particularly when the person has successfully completed a rehabilitation programme in the intervening time. Minor assaults committed a long time ago are also of questionable relevance.
There could even be some arguments advanced in favour of people convicted of sex offences, for example skinny dipping cases when it is not directed to the attention of any person or persons let alone children. There are also cases of persons convicted of unlawful carnal knowledge or maintaining a sexual relationship with children aged 15 where the offender is 2 or less years older than the complainant. Does that really make the person a risk to children or unsuitable to work with children in the absence of other offending at age 30?
5(b) In what occupations would a criminal record never, or almost never be relevant.
Occupations where there is little or no contact with the public such as labouring and fruit picking would not justify the doing of a criminal history check. Recent drug convictions may be relevant in the case of the above mentioned workers if they were required to operate dangerous machinery. Violent offences may be relevant if a person was working in a small group of people in an isolated location.
5(c) Are there any examples where criminal record checks are conducted unreasonably (ie go beyond the inherent requirements)
Criminal history checks are almost always unreasonable in so far as checks for all convictions are undertaken for types of employment other than those discussed above where all convictions may be relevant. It would be preferable for employers requesting criminal record checks to only ask about convictions affecting the inherent requirements of the job.
5(d) Are there examples of licensing, admission or registration rules that go beyond the inherent requirements of the position.
It is arguable that the blue card criminal history is too wide as outlined in 5(a). We have heard of a person being refused a blue card to work with children because of two convictions for possession of small amounts of cannabis more than 20 years ago. In the meantime the person had matured, had a family and had not used cannabis for many years.
Of particular concern is the taking into account of charges which have been discontinued or of which the person had been acquitted. Whilst the ability to look at individual circumstances should minimise injustices, too often in practice it does not. It allows a person's chosen career working with children to be potentially ruined by the making of a vindictive complaint so long as the complainant at least convinces the police to charge the person.
In some circumstances charges are discontinued because Police Prosecutions or the Director of Public Prosecutions realise that credible evidence simply does not exist. Even where proceedings are discontinued for other reasons such as concern for or lack of co-operation from the complainant or other witnesses, the fact remains that the evidence has not been tested and may in fact be totally false. We have heard of a case where a young person was charged with serious offences. The case against her seems to have been founded on the party provisions, given that the person was not alleged to have physically committed the offences. The charges were discontinued due to lack of evidence. The person was merely present at the party at which the offences were alleged to have occurred. 12 months later the Commission of Children and Young People, whilst they have not issued a negative notice, still have not issued a blue card despite there being no other suitability issues.
Concern also exists in relation to taking into account charges of which a person has been acquitted by a court. A case which we have heard about involved a blue card applicant who was the victim of a home invasion. He used what he considered reasonable force against the group of youths to defend himself and his property. He was subsequently charged with assault occasioning bodily harm. The youths claimed a far greater degree of force was used, however there was no medical evidence consistent with their stories. He argued self defence and was acquitted by the jury. The assessing Officer at the Commission of Children and Young People rejected his blue card application, actually having the temerity to say that he had used greater force that he claimed and citing the youths' evidence which had been quite obviously rejected by the jury. The Officer also did not address the issue that there was no medical evidence in circumstances where there would have been noticeable injuries if the youths' evidence was truthful.
The Officers of the Commission for Children and Young People are trained to consider these types of matters. The case above raises serious concerns about how the average employer might use information which they have unnecessary access to.
The only justification for the taking into account of charges which have not resulted in a conviction is where a defence of insanity has resulted in a not guilty plea or the matter has not proceeded to trial because of a finding of the Mental Health Tribunal that the person is unfit for trial.
Similarly wide disclosure is required by many health professionals including medical practitioners, physiotherapists, speech pathologists, chiropractors, podiatrists, optometrists, psychologists, pharmacists, occupational therapists and dentists. It is difficult to understand why all charges and convictions are relevant, including spent and unrecorded convictions of all types, bearing in mind that serious offences where the offender is sentenced to 30 months or more imprisonment in Queensland do not become spent. There may be offences in particular categories where full disclosure is justifiable despite the age of the convictions.
5(f) What guidance is available in your area of employment to help employers determine the inherent requirements of the job in the context of employees with a criminal record.
Because Legal Aid Queensland's core business is in the provision of legal services, usually the general test of "fit and proper person" for the position is used. Circumstances such as the length of time since the offence, circumstances of the offence and evidence of rehabilitation and the person learning from their mistake would always need to be taken into account.
5(g) What information should be available to employees about inherent requirements of the job.
Employees should always be informed as to their job description, for practical reasons other than the possible relevance of criminal history. In addition employees or prospective employees should be told exactly what types of criminal record the employer considers relevant and why. The employee or applicant should always be given the opportunity to explain their own record and to challenge the relevance of any of the types of criminal record nominated by the employer. Even where the particular industry prohibits employment of a person with certain convictions on their criminal record, the employer should always tell the employee or applicant the results of a criminal record check and invite the person to discuss the situation. It is not unheard of for criminal record checks to be incorrect due to the mixing up of the records of people with the same or similar names. Where the employer does have some discretion to consider the circumstances of the particular case the provision of natural justice by the employer to the applicant or employee should be enforceable.
5(h) What mechanisms are available to appeal from disqualification from employment
A decision regarding admission or disciplinary measures including suspension from practice of lawyers can be appealed in accordance with the provisions of the Legal Profession Act 2004. Most decisions can be appealed to the Court of Appeal. In relation to employment specifically at Legal Aid Queensland, applicants who are already public sector employees can use Legal Aid Queensland's Grievance procedure which is consistent with the Public Sector Directive on the topic. There are other remedies under state industrial law such as discrimination law and also judicial review available to both public sector employees and those applying to join the public service.
5(j) Do licensing or registration rules allow for individual assessment
of a person's criminal record and its relevance to the inherent requirements of a particular job within the industry.
Most registration and licensing rules do allow for individual assessment but in practice that assessment is not always fairly and reasonably carried out.
In relation to the legal profession, the admission rules and disciplinary regime do allow for individual assessment to be carried out.
6.(b)-(e) Questions for Employers regarding employees disclosing criminal convictions
The answer to these questions is that it very much depends upon the circumstances, namely the position the employee held or was applying for, the type of offence he or she had been convicted of, how long ago the conviction was and any evidence as to whether the employee had learnt from the mistake or mistakes. Extremely important in our view is that criminal record is not the only indicator of suitability or otherwise for a particular position. In many cases work history and employer references will be a better indicator of suitability.
6 (f) Any examples of a person voluntarily disclosing their criminal record and then experiencing discrimination?
An example of a person volunteering information and then suffering discrimination is the person referred to in 2(e) whose traineeship the government department attempted to cancel. As in that case usually the employer claims that the employee did not disclose the conviction to justify the dismissal on the ground of dishonesty.
6 g) Any examples of instances where an employee has been dishonest about their criminal record.? Result?
Our advice team have had clients asking for advice about this particularly in the area for licensing or registration such as teachers, security workers etc. Often the employee's justification for not disclosing the conviction has been not thinking it is relevant or not believing that it will be included on the criminal record check, such as convictions the employee believes were unrecorded or which were some years ago. Generally speaking the employee is either sacked or in relation to registration or licensing asked to "show cause" not just in relation to the conviction or convictions but also in relation to their dishonesty in not disclosing the convictions.
6(h) Any examples of employee refusing to answer questions about their criminal record.
Our advice solicitors have given advice to people seeking advice on whether they have to disclose convictions. Most of those employees had been told that they would not be further considered until they consented to a criminal record check.
7(a)-(e) Questions for Employers about procedures and guidelines in examining employee's criminal record
As mentioned previously, we, as an employer have rarely faced this issue. When the issue has come up, the "fit and proper person " test would be used, which does allow particular circumstances to be taken into account. If it was proposed to take criminal history into account in any decision affecting the employee, the employee would be informed and invited to make submissions.
7(f) What information should an employee/applicant have about how criminal record might be considered by an employer?
Clear information should be given about what types of offences may be relevant and are expected to be disclosed, what opportunities will be given to the applicant/employee to make submissions about their own particular circumstances and a clear process for the employee to follow to have the decision reviewed or to appeal, including whether further material can be considered.
7(g) Examples where employers have not had clear or fair procedures for considering an applicant's criminal record
We have heard of an example of where an employer found out after several weeks of good work by the employee of the employee's criminal record and dismissed the person. The employee believes that if a criminal record was likely to affect the employment, the employee should have asked about it at the application stage and asked for consent for a criminal record check. Another example of the issue of criminal record would be the juvenile mentioned in 2(d) where it is suspected that the real reason for the dismissal was a different form of discrimination for which there were legally enforceable remedies.
We have encountered other examples where the employee was not given the opportunity to make submissions about the circumstances surrounding offences. Very often the convictions were quite old and at best of questionable relevance.
7(h) What opportunities should employees be given to an applicant to explain their criminal record.
The employee should be told which types of convictions may be considered relevant and given an opportunity to disclose a criminal record and explain it at the time of application for any job application, promotion etc. If the employer subsequently applies for a criminal record check a further opportunity should be given to make submissions after the results are obtained by the employer. Sometimes an employee may genuinely overlook or forget about a matter especially if it occurred some time ago or the employee is uncertain about which convictions do and don't have to be disclosed in accordance with spent conviction legislation.
7(i) Any examples of where dishonesty has resulted in dismissal even when the criminal record is not relevant to the job
We have no clear examples of this although it is sometimes cited as a reason. The problem with allowing employers to use dishonesty about criminal record which is not relevant to the job as an excuse for dismissal or not employing the person is that it can be used as an excuse for dismissal for an unlawful reason. A clear example is the case of the juvenile in 2(e).
With other forms of unlawful discrimination such as sexual preference, age, race etc it would be considered discrimination to even ask about these attributes if they are not relevant to the inherent requirements of the job. Why should this be any different for discrimination on the basis of criminal record? The employee should not be placed in the position of having to decide whether to lie and risk being later found to be dishonest or to tell the truth in which case they know there is a good chance that the employer will find another excuse for dismissing them or refusing to hire them.
Yours faithfully,
CHIEF EXECUTIVE OFFICER
LEGAL AID QUEENSLAND
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