Is It Illegal to Discriminate Based on a Criminal Record?

When can employers consider a criminal record in hiring, promotion, or termination decisions — and when does doing so cross the line into unlawful discrimination? It’s a question many employers get wrong, often because they don’t realise discrimination law extends well beyond the usual protected attributes.

In this episode of the HR Legal Lowdown, Alex Bennett, Business Development Manager, is joined by Phoebe Strauch, Partner at HR Legal, to explain what the law actually says, the common mistakes employers make, and how to manage criminal history issues without exposing your organisation to a discrimination claim.

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Do Employees Have to Disclose a Criminal Record?

Generally, no. Employees are not legally required to volunteer information about their criminal history. However, if an employer directly asks about criminal convictions, those convictions should be disclosed — and failing to do so can create problems for the employee down the track.

There are also role-specific exceptions where disclosure is required by law. These include positions subject to Working With Children checks, and certain roles in health, security, and other regulated industries. In those contexts, disclosure is not optional.

Can Employers Conduct Background Checks?

Yes — but there are important steps employers should follow to do so lawfully. Best practice includes:

• Obtaining written consent from the employee or candidate before conducting a check
• Ensuring the check is relevant to the role the person is being engaged to perform
• Using the information only to assess suitability for that specific role
• Complying with applicable anti-discrimination legislation and privacy laws

Background checks are a legitimate tool — the key is using them proportionately and lawfully.

When Does Considering a Criminal Record Become Discrimination?

This is where employers most commonly come unstuck. Under a range of state and federal laws, it is unlawful to discriminate against a person on the basis of an irrelevant criminal record or a spent conviction. The operative word is ‘irrelevant’ — not every criminal history will be relevant to every role, and treating it as an automatic disqualifier can expose an employer to a discrimination claim.

Employers need to tread carefully when making decisions about hiring or retention that involve an employee’s criminal history.

What Is a Spent Conviction?

In many Australian jurisdictions, a conviction becomes “spent” after a certain period — typically 10 years for adults. Once spent, employers are prohibited from taking that conviction into account in employment decisions.

But even where a conviction is not yet technically spent, the central question remains the same: ‘is it relevant to the role?’ If the answer is no, using it to exclude someone from employment or advancement can still be discriminatory.

Practical Steps for Employers

Here is what we recommend employers keep in mind:

• Know your jurisdiction. The legal requirements around background checks and spent convictions vary by state and territory, so understand what applies to you.
• Assess on a case-by-case basis. Not every conviction is relevant to every role. Build a process that fairly evaluates whether a person’s criminal history actually affects their ability to do the job.
• Don’t make assumptions. Acting on assumptions rather than a proper assessment process is where legal and reputational risk tends to arise.
• Get advice if you’re unsure. The stakes — legal exposure and reputational damage — make this an area where early advice pays off.

Frequently Asked Questions

Are employees legally required to disclose a criminal record?

Generally no, unless an employer specifically asks, or the role is subject to a legal requirement such as a Working With Children check or security licence. If asked directly, convictions should be disclosed.

Can an employer refuse to hire someone because of a criminal record?

It depends on whether the criminal record is relevant to the role. Refusing to hire someone because of an irrelevant conviction — or a spent conviction — can be unlawful discrimination under state or federal law.

What is a spent conviction?

A spent conviction is one that has been on a person’s record for a sufficient period of time — typically 10 years for adults — after which employers are generally prohibited from taking it into account in employment decisions.

Do privacy laws apply to background checks?

Yes. Employers must handle personal information, including criminal history information, in accordance with applicable privacy legislation. This includes obtaining proper consent before conducting checks and limiting use of the information to assessing role suitability.

What industries are most likely to have mandatory disclosure requirements?

Roles involving children, vulnerable people, health care, and security are the most common examples. However, requirements vary by jurisdiction and role type, so it’s worth checking what applies in your specific context.

What should I do if a background check reveals a criminal conviction?

Don’t make a snap decision. Assess whether the conviction is relevant to the specific role, consider whether it is spent, and think carefully about whether excluding the person on that basis is defensible. If in doubt, seek legal advice before acting.

It is intended as general information only and does not constitute legal advice. For advice specific to your situation, please contact HR Legal.