Employee background screening checks: limitations and duties for the employer in Australia

screening checks

Recruiting managers have the responsibility of hiring people who not only will do the job well, but also will not create any problems for the company, hence the necessity for serious background screening checks. While this is a duty to be taken seriously, there are also limitations to such background checks employers need to keep in mind.

Seek the candidate’s consent for a background check

Many companies routinely order background checks on prospective employees these days. It has become the norm in many places, but doing this puts an employer at risk of being sued for breach of privacy and anti-discrimination laws. 

The HR department representatives need to inform the applicant about background checks and explain how a criminal record is relevant to the position the individual has applied for. There are certain areas, like working with vulnerable persons or children, where background checks are mandated by law, but for the rest, there is no such requirement and the applicant is under no obligation to reveal prior convictions. To prevent a possible lawsuit, the employer must obtain the applicant’s consent before ordering a police check.

Help the applicant by doing a criminal background check

Most job applicants will probably have no problem with undergoing criminal background checks. However, the whole process might seem annoying and a waste of time, in which case the company should explain the whole thing can be done online, without bothering the applicant in any way. Rather than sending the job seeker to the local police station to obtain a background check, the company can offer to do that online using the services of an accredited agency. They have access to police databases in all the Australian states and can provide a national police check within 3 business days. 

Thus, the job applicant won’t have to go through any additional trouble and the recruiting team can rest assured that the individual has a clean slate.

The delicate issue of ‘spent convictions’

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Under Australian law, a job applicant is not required to disclose a criminal record at a job interview. If the employers perform a national police check and then discovers the candidate has prior convictions, in some cases these cannot be considered grounds for dismissing that individual’s applications. 

After a number of years, which varies from state to state, any problem a candidate might have had with the law becomes a ‘spent conviction’. If such a question comes up during the interview, the candidate is not required to disclose the existence of a spent conviction on his record. Since he was under no obligation to disclose his past, the candidate cannot be accused of being dishonest as a ground to dismiss his application or to terminate the contract. This brings us to another problem – the need to have a police check as quickly as possible.

There are cases where business needs to hire someone fast, before performing a background screening, on the idea they will deal with that later. However, this approach can lead to potential trouble, as it is rather complicated to terminate a contract based on an old conviction that comes to light after the police check comes in. State institutions are notorious for their red tape and long waiting times, which is why it is preferable to use an accredited agency which can email you the police check of a prospective employee in just a couple of days.

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