Employers can only conduct a criminal history check with the informed consent of the individual. What happen when an employee refuses to consent to a police check?
Employees are often reluctant to disclose their criminal history for fear that their colleagues or the management team in the organisation will discover undisclosed personal information and that they will be subjected to harassment or discrimination with the possibility of being dismissed due to their criminal records.
If an employee refuses to consent to a police check, a private meeting with a relevant senior manager should be arranged to explain the organisation’s justification behind the policy.
The meeting should reiterate the company’s strict confidentiality policy on criminal records, making it clear that only select managers will have access to the information. The employee should now have an understanding of the types of crimes that are relevant to the screening process, and the protection afforded to them by spent conviction schemes in their respective state or territory.
Employees could also be reminded of their right to lodge a complaint with the Australian Human Rights Commission if they face discrimination because of their criminal history and their general protections under the Fair Work Act 2009 (Cth) which prevent employees being dismissed for a prohibited reason.
The manager should explain that not all criminal records will affect their employment conditions and that their record will be assessed sensitively with consideration to a range of reasonable factors. Ideally, the employee will disclose the reasons behind their resistance.
If the employee reveals any relevant criminal history at this stage, make sure you encourage an open and supportive dialogue which assesses the disclosed information against the organisation’s criminal record policy.
If the employee refuses to consent to a police check after going over the above procedures, refer them to your organisation’s policy on failure to undergo a police check.
It should be explained that failure to comply may result in a determination being made that they are no longer suitable for their role which could result in termination or a change of position/role.
If you would like to know more about the steps in conducting police on existing employees, read here
