Employing people can be a hard process. There is a certain amount of faith required when you give an employee responsibility within your business. Understandably, you would generally like to know whether you can trust people within your business. This is particularly the case with work pertaining to dangerous work environments, and vulnerable people like the elderly, the sick, and young children. Accordingly, it may be tempting to resort to police checks on potential employees. However, there are some really important legal factors to be aware of when doing so. It is not a simple yes or no answer, and requires assessment on a case by case basis.
In this article, we’ll explain when it’s reasonable for an employer to conduct a police check on job applicants or employees.
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Why police checks are important
This process is essential to ensuring a safe and trustworthy work environment. In some cases, if an employer has failed to exercise the requisite due diligence when recruiting an employee and something goes wrong, the company could be held vicariously liable for the conduct of the employee. It is also integral to the safety and well being of the broader community that workplaces remain safe. Also, from a business perspective, it is in an employer’s interest to ensure the reputation of the business remains positive and fruitful. It is important to lessen factors which may erode this positive reputation. It may be wise to consult a business or employment lawyer for guidance on these types of issues.
Type of employment
The nature of the role and type of industry generally determines whether a police check is fair or not. The rule of thumb is that it is usually required for jobs involving:
- cChildren
- Vulnerable people, i.e. the elderly and sick (hospitals, nursing homes etc)
- Security positions
- Positions of trust
- Government roles
- Legal positions like lawyers, police officers, and corrective services
This list is non-exhaustive and does not include all jobs. However, it is generally the case that roles requiring a greater need for trust concerning the welfare of others seem to be what mandate police checks. Many of these jobs will require it by law as outlined on the Australian Criminal Intelligence Commission website. Nevertheless, this does not mean that any jobs falling outside the purview of trust do not necessarily also require a check. This can be at the discretion of the employer.
In this instance, employers should adhere to these main requirements:
- The employer informs the job applicant of the need for a police check,
- The employer gets the consent of the job applicant to do a police check
- They can prove that the requirement of the police check is reasonable within the context of the role
When to ask for one
For most jobs, short-listed applicants or those invited to interview should be the only ones requiring a police check. This minimises:
- Unneeded and time-consuming work involved with processing many consent forms
- Costs, as police services charge for criminal history checks
- Risking disclosure of confidential information when it is not required
Legal implications
If an employer cannot satisfy the requirements, then there can be both discriminatory and privacy breaches. It is integral to the recruitment process that employers do so in a fair and nonprejudicial manner. It is also best practice for employers to be aware what information they are legally allowed to ask job applicants and employers for. A failure to adhere to any of the Australian Privacy Principles (APPs) can have consequences.
Whilst there are some instances where a clear line can be drawn, there are occasions that straddle that line of ambiguity. It is incumbent on employers to protect themselves, their business, and the community, but must also guarantee the preservation of anti-discrimination and privacy laws in the process.
