Criminal records: Why they’re more than simply a ‘pass’ or ‘fail’

Hiring managers essentially have one goal when recruiting: to find the ideal fit for their organisation. But what appears uncomplicated on the surface can become murky when criminal records are involved.

The risk is that HR may take a sweeping approach to hiring that immediately overlooks any candidate with a criminal record – and they have the legal backing to do so. However,  in some instances this can be detrimental to the organisation, as they may pass on a jobseeker who would be perfect for the role. Here’s why it pays to look beyond criminal records as a mere ‘pass’ or ‘fail’.

Recent changes to hiring laws

Pre-2019, organisations were only allowed to refuse employment for a candidate because of their criminal record if it “rendered the applicant unable to fulfill the inherent requirements of the law”. However, a recent amendment to the Australian Human Rights Commission (AHRC) Regulations has broadened that scope, giving hiring managers much greater discretion when it comes to how much a criminal record can factor into their decision-making process.

The event that kick-started the amendment was entirely reasonable given the law at that time – Suncorp was unhappy having been found guilty of unlawful discrimination because they withdrew a job offer to a candidate with a history of child pornography convictions. But such a blanket change to the AHRC Regulations means jobseekers with far more trivial criminal records are being tarred with the same brush as high-level offenders.

In New Zealand, employers have the right to ask about your criminal history and candidates have an obligation to answer honestly. However, if a person has been conviction-free for the past seven years, and has never received a custodial sentence, they’re protected by the Criminal Records (clean Slate) Act, which automatically conceals the crime and protects them from having to disclose it – even if asked.

Seeing beyond a police check

National Police Checks (known as a Criminal Record Check in New Zealand) are essential for hiring managers to get a complete history of a candidate’s run-ins with the law, giving them peace-of-mind they’re making a safe, trustworthy hire on behalf of the organisation.

The check details all disclosable criminal history for an individual consistent with the applicable spent conviction rules, including current pending charges and even traffic convictions, regardless of the state or territory where the crime was committed.

This process does come with its challenges, however. For busy hiring managers who need to engage dozens – if not hundreds, in a large corporate setting – of police checks every week, they have little time to look beyond the top-line ‘yes’ or ‘no’ of whether a candidate has a criminal record or not. This basic information may include no further details on the circumstances around the offence, which can further confuse matters.

Furthermore, while uncommon, there have been instances of individuals being slapped with criminal records due to mistaken identity – a major problem if that error is not uncovered until the police check is requested.

Does the criminal record have any bearing on the role?

There are myriad reasons why someone may have a criminal record. The only question hiring managers should be focusing on, however, is whether that element of the candidate’s history has a specific bearing on the role they have applied for.

For example, if the record is a driving whilst intoxicated (DWI) conviction from years ago and the individual is applying for a white-collar, office-based job with no travel requirements, should that be enough to deny them a position if they are otherwise perfectly qualified?

Much like the law itself, there is a complexity to criminal records that cannot be tagged with a mere ‘pass’ or ‘fail’ stamp and the differences in various convictions are vast. Consider an applicant with a criminal record of fraud applying for a financial role within a major bank. The conflict is obvious. But another candidate with a minor possession offence from their youth may have no reason why they can’t excel in the same position.

Perhaps the biggest indicator that criminal records should be looked at beyond the surface level is that a whopping proportion of the population in Australia and New Zealand has one. In fact, 394,466 Australians committed a criminal offence in the 2018–19 period alone. And in New Zealand, 65,213 adults were charged with an offence in 2019/2020. Extrapolate that over several years and there is a significant portion of the population (even accounting for repeat offenders) making up the job pool. That means companies with large hiring drives may be overlooking good-quality applicants simply because they choose to deny anyone with a criminal record.

Criminal records may be an opportunity for deeper conversation

Giving candidates an opportunity to sit down with the employer and discuss their criminal record is vital in determining how – or even if – the record will affect their ability to perform in the role. Consider it as a way to find potential jobseeking diamonds in the rough – top talent who have been turned away from other companies because of their past.

The benefits of such conversations are vast. You can dig deeper into the candidate’s value structure, ethics and belief system. It may help you identify soft skills that would be a natural fit for your company culture. It can even be a modern strategy for bringing true diversity into your organisation.

Furthermore, for employers who are perhaps wary about getting a truthful verbal response from candidates regarding their criminal record, there’s the added benefit that meeting with them will give you a sense of their character and create a deeper level of trust.

As Dr Suzanne Reich found in her thesis, Beyond the criminal record, “Some employers believed they would see signals manifest in ex-offenders’ non-verbal communication via body language, reactions and presentation”. Without giving candidates the opportunity to explain their history and how they have improved themselves in the time since offending, you can never truly know whether they will add value to your organisation.

How to minimise the risks of a candidate’s criminal record

While there is significant potential value in looking beyond the ‘yes’ or ‘no’ aspect of a candidate having a criminal record, it’s important that hiring managers mitigate any risk to their company as best as possible. You can do that by considering these tips:

1. Have a robust employment policy

First, employment policies should be kept up to date, including any changes to hiring policies and requirements for employees to disclose if they have been charged or convicted of a criminal offence. Any necessary disclosure of such offences during the hiring process should also be made clear to applicants at the outset.

2. Apply the policy consistently

Company policies where a criminal record is relevant must also be applied consistently across the organisation. This will avoid any risk of a terminated employee (with a criminal record) claiming they have been unfairly targeted because of their history.

3. Treat all candidates fairly and without bias

Finally, fairness in all things is often the wisest strategy. For candidates – or even employees – with criminal records, it’s important you give the individual a chance to tell their side of the story, as the reality of the situation can be very different from what you read on an emotionless police record.

Click here to learn more about National Police Checks.

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