With ongoing challenges relating to recruitment, it has become increasingly common amongst many employers to hire quickly – though not always smartly.
In some cases, a too-brief recruitment period can lead you as the employer to miss key information about a potential employee, including criminal histories.
So, if you discover you have made an offer of employment to someone who has a criminal history, what are the options? And how can these situations be avoided in the first place?
Can employers rescind an offer of employment?
So, what are the options if you find out a prospective employee has a criminal history AFTER you have made an offer of employment?
If you discover something about a potential employee (e.g. a criminal history) that causes you to reconsider their suitability, rescinding an offer of employment can be problematic.
Doing so may result in claims of misrepresentation, discrimination or break of contract.
In the past, employers had somewhat more freedom to “discriminate” against a potential employee if the individual’s criminal history meant they were unable to perform the role’s requirements.
However, with Australian Human Rights Commission Regulations introduced in 2019, employers can no longer use criminal histories which are deemed “irrelevant” to that position to revoke an offer of employment without this being considered as discrimination.
For example, as the team at NB Lawyers explains “health and aged care employers will be able to consider criminal charges around drug use much more relevantly than a manufacturing or professional services employer.”
What are the ramifications?
A specific example comes from a case in which Suncorp made a conditional offer of employment to an individual, pending a criminal background check.
When several criminal charges were discovered, including one relating to child pornography which resulted in prison time, Suncorp revoked the offer of employment.
When the individual took the case to the Australian Human Rights Commission (AHRC), the Commission found that despite the seriousness of the offences, they were not relevant to the individual’s ability to perform the role.
Suncorp rejected this decision and refused to pay any damages to the individual.
While the Australian Human Rights Commission does not have the ability to actually enforce these types of penalties, this is the type of situation that most businesses likely wouldn’t want on the record.
The benefits of pre-employment screening documents
Pre-employment screening documents can be incredibly useful tools to help businesses avoid these types of situations.
The team at NB Lawyers notes that some employers utilise a screening document as part of the recruitment process. Well-constructed screening documents specifically ask potential employees important questions – e.g. whether or not they have ever been charged with a criminal offence.
The construction of these documents as statutory declarations means that any false information or untruthful responses provided by potential employees are then “subject to serious misconduct”.
Such an approach allows employers to make more informed decisions before making an offer of employment and can help to avoid unwelcome surprises regarding employee backgrounds.
Another alternative can be to conduct a thorough check and screening process prior to an offer of employment being made to potential employees. Unfortunately, this approach can slow down the recruitment process considerably.
Akyra’s key takeaways
- Quick hiring processes that neglect screening prior to making an offer of employment can overlook key parts of an individual’s background – including a criminal history
- Rescinding an offer of employment based on such a finding can be considered as discrimination, placing employers in a legally problematic position
- Pre-employment screening documents can help to avoid these types of challenges
NEED MORE INFORMATION?
Akyra can help your business to assist and support all your questions and concerns related to recruitment and pre-employment screening documents. Please contact Akyra on 07 3204 8830 or book a free 30-minute consultation for an obligation-free conversation.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
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https://www.lawyersforemployers.com.au/criminal-history-rescinding-an-offer-contract-of-employment-jonathan-mamaril-nb-lawyers, https://humanrights.gov.au/our-work/legal/publications/be-v-suncorp-group-ltd-2018, https://www.nra.net.au/criminal-record-discrimination/#:~:text=The%20AHRC%20noted%20that%20withdrawing,inherent%20requirements%20of%20the%20job