Employers generally want to ensure that a potential employee is honest, trustworthy and have the right attributes for the role. A prudent employer will also want to ensure that they are not employing someone who may not be the right fit for the business, or who does not have the skills and attributes that it requires. The costs associated with the performance management and termination of an employee who should not have been offered the role to begin with, are far outweighed by the minimal investment of time and effort involved in appropriate pre-employment screening. We receive several enquiries regarding when and how an employer can conduct pre-employment screening and have considered some of the issues such screening may cause in this article.
Pre-employment screenings should be a robust system to ensure that not only are the employee’s skills and qualifications accurate but that they are a suitable employee. We suggest that at a minimum pre-employment screening should include the following:
- conducting checks on qualifications of the employee by reviewing academic transcripts and records from applicable professional or other registering bodies;
- past employment reference checks;
- personal reference check;
- criminal history report;
- review of social media accounts;
- If the employee will hold a senior position, an ASIC register check; and
- medical clearance, if the employee’s duties may create a risk to his or her health or exacerbate a pre-existing health condition.
Both Federal and State Legislation offers protection to applicants for employment and promotes the principal of equal opportunity by prohibiting discrimination based on certain protected characteristics. The grounds on which it is unlawful to discriminate against a person may vary in each jurisdiction but generally include race, ethnic origin, sex, marital status, age, transgender, non-specific gender, pregnancy and physical or intellectual disability. It is therefore important for employers to ensure their pre-employment screening does not leave them open to possible claims of discrimination. If employers choose to rely on pre-employment screening to assist in their recruitment, they should ensure that the use of such information adheres to the national privacy principles and any decisions made based on information collected, has a clear connection to the inherent requirement of the position, and the ability and suitability of the employee for the role. Information such as an employee’s age, gender, marital status, relationship history, race, religion, union affiliation and the like should not be relevant and should form no part of the pre-employment screening an recruitment process, unless the employer is able to rely on an exemption in the anti-discrimination legislation.
Privacy and Pre-Employment Screening
The Privacy Act 1988 (Cth) (“Privacy Act”) applies to federal government agencies as well as some private sector organisations including bodies corporate who use or disclose personal information in the course of carrying on a business. In March 2014, the Privacy Act was amended to introduce thirteen legally binding Australian Privacy Principles (“APP”) which apply to personal information held by Australian government agencies and most Australian companies. In this regard, it is important to note that personal information handled by a private sector employer is exempt from the APP if it is directly related to:
- a current or former employment relationship; or
- an employee record relating to the individual employee concerned.
“Employee record” refers to a record of personal information relating to the employment of a person, such as information about the employee’s:
- engagement, training, disciplining or resignation;
- terms and conditions of employment;
- personal and emergency contact details;
- performance or conduct;
- taxation, banking or superannuation affairs.
However, the exemption does not include information otherwise collected about candidates when determining to offer employment and in this respect, employers must ensure that any personal or sensitive information collected about a prospective employee is not used unless the employee consents and the information is reasonably necessary for one or more of the entity’s functions or activities. In addition, employers must ensure that the means of collecting such information is only by lawful and fair means. In most cases, organisations are required to provide candidates with written notification of the intended collection or use of sensitive or personal information including the primary purpose for which the information will be obtained.
Once a job candidate, however, is offered and accepts employment a private sector employer is exempted from the APP in the Privacy Act when handling current and past employee records for something that is directly related to the employment relationship and can refuse access to personal information for many reasons, including on the basis that giving access would have an unreasonable impact on the privacy of other individuals. As such, this means that an employer does not have to grant an employee access to their employee records under the Privacy Act. Whilst this may be the case legally, even if the employee records exemption does apply, employers should take steps to protect the confidentiality of employee records and review the security systems they have in place to achieve this. The APP in particular now requires organisations to take such steps as are responsible in the circumstances to destroy information or de-identify it when it is no longer needed for any permitted purpose. Employers are able to determine under the new privacy regime how long they keep employee records but it is good practice to destroy those records no longer needed in a timely manner.
Although, past criminal activity and a criminal record are not protected attributes under anti-discrimination legislation, before conducting criminal history police checks an employer should consider why the police check is necessary. Secondly, an employer wishing to conduct a police check should inform the applicant of the requirement and ensure the information collected is treated confidentially and disclosed only to those persons required to have the information in order to make a decision regarding the suitability of the candidate for employment. An employer should also ensure the information is stored and destroyed in an appropriate secure manner.
Criminal record discrimination is not unlawful under federal law or NSW state law. However, the Australian Human Rights Commission may investigate complaints of discrimination in employment based on a criminal record. It is not discrimination if a person’s criminal record means that he or she is unable to perform the “inherent requirements” of a particular job. This must be determined on a case by case basis, considering the nature of the job and the nature of the criminal record.
Furthermore, almost all states and territories, and the Commonwealth have statutory Spent Conviction Schemes (“Scheme”). The scheme allows an individual to refrain from disclosing certain past criminal convictions. The police will not release information to an employer about a spent conviction on a police check unless the conviction comes under a relevant exemption, for example where the candidate will be working with children. In such circumstances, a candidate is not required to disclose a spent conviction even if they are requested to disclose prior convictions by a prospective employer.
The decision of MR CG v State of NSW (RailCorp NSW)  AusHR 48 demonstrates that employers may be subject discrimination claims by potential applicant’s due to their criminal record. Mr CG had been convicted for a middle range drink driving offence in 2001 and also convicted in 2008 for a low range drink driving offence. However, when Mr CG applied for a position as a Market Analysis with RailCorp in 2009 he was advised he was not offered the position due to his criminal record, despite meeting all the selection criteria and previously working for RailCorp for eight years. RailCorp denied that the decision not to offer Mr CG constituted discrimination in employment and stated that his criminal record made him unable to perform the inherent requirements of the Market Analysis job. Ms Branson of the Australian Human Rights Commission found Mr CG’s criminal record was irrelevant as it had no connection to his employment and had not occurred during work hours or that he had been driving as part of any work activity at the time of the offence. Ms Branson found that RailCorp had in fact discriminated against him and recommended RailCorp pay $7,500 in compensation. It was also recommended that RailCorp should review its recruitment process and their human resources should undertake anti-discrimination training to prevent further discrimination on the basis of criminal record.
Pre-employment Medical Checks
Whether a pre-employment medical examination complies with equal opportunity or privacy laws will depend on a number of factors, including the nature of the job, whether a medical condition is relevant to the performance of the job, and what the employer does with any information obtained from a medical examination. The most significant risk for employers who medically screen applicants is potentially breaching the Disability Discrimination Act 1992 (Cth) (“Disability Discrimination Act”).
The Disability Discrimination Act prohibits employers from discriminating against prospective employers on the basis of their disability in the arrangements made for the purpose of determining who should be offered employment and the terms and conditions on which employment is offered. The Act does include an exemption if an employer can show that, because of the person’s disability, they would not be able to carry out the inherent requirements of the particular work, even if the relevant employer made reasonable adjustments for the person to accommodate their disability.
The potential risk in discriminating against a potential applicant due to a medical condition can be seen in the decision of Vickers v The Ambulance Service of NSW  FMCA 1232. Vickers had applied for a position as a trainee ambulance officer, however, failed the medical examination due to his type 1 diabetic condition. Federal Magistrate Raphael ordered the NSW Ambulance Service to allow the Applicant to proceed to the next stage of the recruitment process and ordered the Ambulance Service pay him $5,000 in compensation. His Honour found the Ambulance Service had breached the Disability Discrimination Act by discriminating against the Applicant on the grounds of his diabetes and rejected the defence that the applicant would not be able to perform the inherent requirements of the position. His Honour found that the Applicant had successfully managed his condition during his previous work engagements, including four years as a registered nurse in a hospital.
Lessons for Employers
Employers who are using, or contemplating using, pre-employment checks need to consider carefully the purpose of such checks, what is being assessed, how the information will be used and how it will be treated for privacy purposes. Pre-employment checks that are implemented appropriately can be a useful tool for employers to assist in determining whether a candidate is suitable for employment. In this regard, pre-employment screening can be a powerful tool for employers to authenticate academic qualifications and previous stated job performance, as well as ascertain whether they are fit and of good fame and character to join the organisation.
In this regard, employers should consider the following matters:
- Clearly identifying what the job requirements are and what the pre-screening questions will be used for;
- Ensure that questions relate directly to the performance of the job or duties required to be performed;
- Ensure that any pre-employment questions do not appear to be discriminating against a particular class of person and ensure any questions are not intended to “weed out” applicant’s with disabilities; and
- In the event an employer receives unfavourable information that gives them any reason for concern during the pre-screening process, it is advisable to consider the relevance of the information to the role being filled.
Given the complexity of pre-employment screening and the benefits of the process when completed correctly, we suggest that employers consider the implementation of an appropriate policy about pre-employment checks and include contractual covenants to ensure that prospective employees being offered employment consent to such information being used and collected.
If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to your employment pre-screening procedure, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.