Confused about conducting police checks in recruitment? Read these key tips

Creating a safe and trustworthy workplace is a top priority for any organisation. Unfortunately, there is no fool-proof strategy to achieve this; however, one of the most effective ways to minimise risk is through applying police checks in the recruitment process.

However, it can be confusing for employers to navigate when and how to implement them, how to make sure they are compliant and how to communicate with applicants about the process. Whether you are a seasoned HR expert or new to the field, this post will provide valuable insights to help you navigate the complexities of police checks with confidence. Ai Group members can also access our support resources on this topic, including:

• FAQs: Police Checks
• FAQs: Reference and Pre-Employment Checks
• Sample: Statement on the use of pre-employment findings
• Discrimination: Protected Characteristics Under Legislation

Why police checks matter

Police checks are for verifying the background of potential employees. They help employers make informed decisions by revealing any relevant criminal history that might impact the candidate's suitability for the role. This is particularly important for positions involving vulnerable populations, financial responsibilities, or sensitive information.

Legal compliance in Australia

In Australia, police checks must be conducted in accordance with various laws and regulations to ensure fairness and privacy. Here are some key points to consider:

1. Privacy Act 1988: This Act governs the handling of personal information, including police checks. Employers must obtain the candidate's consent before conducting a check and ensure that the information is used solely for the purpose it was collected.
2. Anti-Discrimination Laws: It is crucial to ensure that police checks do not lead to discrimination. Decisions should be based on the relevance of any criminal history to the job role, not on the existence of a criminal record alone. Anti-discrimination legislation in some states and territories also protects against discrimination on the basis of old (also known as ‘spent’) convictions.
3. Fair Work Act 2009: This Act provides guidelines on the fair treatment of employees and candidates. Employers must ensure that police checks are conducted fairly and transparently.

How and when to conduct police checks

1. Pre-employment stage: It is recommended that employers conduct police checks in the final stages of the recruitment process to avoid unnecessarily screening applicants that would otherwise be unsuccessful. Many employers conduct police checks as a last step after a conditional offer of employment has been made with other relevant checks such as pre-employment medicals. This ensures that the check is relevant to the final stages of the hiring process and respects the candidate's privacy. However, employers should be aware of not releasing other suitable candidates until this process has been completed.
2. Consent and disclosure: Always obtain written consent from the candidate before conducting a police check. Clearly explain why the check is necessary and how the information will be used.
3. Relevance to role: Assess the relevance of any disclosed criminal history to the specific job role. For example, a minor traffic offense may not be relevant for an office job but could be significant for a driving position.
4. Regular updates: For roles with ongoing security requirements, consider periodic police checks to ensure continued compliance and safety.

Employers should note that for roles involving contact with children a mandatory Working with Children Check (WWCC) needs to be undertaken. Other positions may require medical and pre-employment checks.

Examples of irrelevant criminal history

When evaluating criminal history, it is important to distinguish between relevant and irrelevant offenses. Here are some examples of criminal history that might be considered irrelevant:

• Minor traffic violations: For most office-based roles, minor traffic offenses such as speeding tickets are unlikely to impact job performance.
• Old offences: Offenses that occurred many years ago, especially if the candidate has demonstrated good behaviour since, may be less relevant. Anti-discrimination legislation in some states and territories also protects against discrimination on the basis of old (also known as ‘spent’) convictions.
• Non-related offenses: Offenses that have no bearing on the job responsibilities, such as a drink driving charge for a role that does not involve operating a vehicle.

Raising concerns during the police check process

HR professionals may encounter situations where a police check reveals concerning information. Here is how to handle such scenarios:

1. Review the information: Carefully review the details of the criminal history to understand the nature and context of the offenses.
2. Consult with legal or compliance teams: If unsure about the relevance of certain offenses, seek advice from your legal or compliance teams to ensure you are making informed decisions. Or contact Ai Group for specialist advice.
3. Discuss with the candidate: Arrange a private meeting with the candidate to discuss the findings. Approach the conversation with sensitivity and give the candidate an opportunity to provide context or explain any mitigating circumstances. Tips on managing the conversation below.
4. Document the process: Keep detailed records of the decision-making process, including the reasons for any decisions made based on the police check. This documentation can be crucial if the decision is later questioned.
5. Make a fair decision: Base your decision on the relevance of the criminal history to the job role, considering factors such as the nature of the offense, how long ago it occurred, and any evidence of rehabilitation.

Managing the conversation with the applicant

Handling conversations about criminal history with sensitivity and professionalism is crucial. Findings on police checks are more common than many perceive, and quality applicants may have simply made a mistake. Good people do make bad decisions, so it is important to look at the findings objectively and without bias. Here are some tips:

1. Be respectful and non-judgmental: Approach the conversation with empathy. Acknowledge that discussing criminal history can be uncomfortable and assure the candidate that the information will be handled confidentially.
2. Explain the relevance: Clearly explain why the police check is necessary for the role and how the information will be used. This helps the candidate understand the importance of the process.
3. Focus on the role: Discuss any relevant criminal history in the context of the job requirements. Explain how certain offenses might impact the candidate's ability to perform specific duties.
4. Provide an opportunity to explain: Give the candidate a chance to explain the circumstances surrounding any offenses. This can provide valuable context and demonstrate the candidate's honesty and willingness to be transparent.

4 Tips for HR professionals to implement police checks

1. Clear policies: Develop clear policies and procedures for conducting police checks. Ensure all staff involved in recruitment are trained on these policies.
2. Transparency: Be transparent with candidates about the police check process. This builds trust and ensures candidates understand the importance of the check.
3. Confidentiality: Handle all police check information with the utmost confidentiality. Store records securely and limit access to authorised personnel only.
4. Fair assessment: Evaluate any criminal history in the context of the job role. Consider factors such as the nature of the offense, how long ago it occurred, and any evidence of rehabilitation.

Protecting your business in a fair manner

Incorporating police checks into your recruitment process is a recommended step in ensuring a safe and trustworthy workplace. By adhering to Australian laws and handling the process with transparency and respect, HR professionals can make informed hiring decisions while maintaining the privacy and dignity of candidates. Remember, the goal is not just to identify potential risks but to foster a fair and inclusive hiring environment where every candidate is given a fair chance based on their suitability for the role.

It is important to comply with Australian laws and take all reasonable steps to mitigate risk, but it is equally important to treat candidates with respect. You do not want to lose an exceptional candidate because of an error in judgement, however you equally do not want to accidentally hire someone with a laundry list of relevant offences that put your employees and business at risk.

Further information

For assistance with your workplace matters, Members of Ai Group can contact us or call our Workplace Advice Line on 1300 55 66 77 for further information. 

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