Employment Discrimination and Criminal Records: Lessons from BE v Suncorp Group Ltd [2018] AusHRC 121

Feb 104 min read

Introduction

Discrimination in employment based on a person’s criminal record is a significant issue in Australia, raising complex questions about fairness, rehabilitation, and workplace integrity. The case of BE v Suncorp Group Ltd [2018] AusHRC 121 highlights these challenges and underscores the importance of ensuring fair and lawful recruitment practices.

In this case, the Australian Human Rights Commission (AHRC) found that Suncorp discriminated against a job applicant by rescinding his conditional job offer due to his criminal history. This decision is a critical reminder for both employers and job seekers about the obligations and rights that exist under Australian law.

At 1800ADVOCATES, we work to ensure that individuals facing discrimination in the workplace understand their rights and can take action when they experience unfair treatment.

Employment Discrimination and Criminal Records: Lessons from BE v Suncorp Group Ltd [2018] AusHRC 121

The Case: BE v Suncorp Group Ltd

In 2015, BE applied for a Work@Home Claims Assist Consultant position with Suncorp. He successfully progressed through the recruitment process and was offered the role, conditional upon passing a background check. When Suncorp discovered BE’s criminal history—which included prior convictions for child pornography offences in 2008 and a 2015 conviction for failure to comply with reporting obligations—it rescinded the offer.

BE lodged a complaint with the AHRC, arguing that he was unfairly excluded from employment due to his criminal record. Suncorp defended its decision, arguing that BE’s record was relevant to the inherent requirements of the role, particularly in relation to trustworthiness and good character.

After reviewing the case, the AHRC determined that Suncorp’s actions amounted to discrimination under the Australian Human Rights Commission Act 1986 (Cth).

Legal Issues Considered by the AHRC

The AHRC examined several key legal issues:

Whether BE was excluded from employment due to his criminal record.
Whether this exclusion impaired his equality of opportunity in employment.
Whether Suncorp’s exclusion of BE was justified based on the inherent requirements of the role.

Findings of the AHRC

The AHRC found that:

Suncorp discriminated against BE by rescinding his job offer based on his criminal record.
The exclusion was not justified under the inherent requirements of the role.
BE’s past convictions did not automatically disqualify him from the position.
Suncorp’s recruitment process lacked an individualised assessment, relying instead on broad assumptions about BE’s suitability.
BE’s prior work experience in customer service and dispute resolution demonstrated his ability to work in a role requiring confidentiality and professionalism.

As a result, the AHRC recommended that Suncorp:

Pay compensation to BE for the distress caused by the discrimination.
Revise its recruitment policies to prevent discrimination based on criminal records.
Conduct training for HR and recruitment personnel on how to assess criminal history fairly and in compliance with human rights protections.

What This Means for Workers and Employers

For Workers: Understanding Your Rights

This case reinforces that:

A criminal record does not automatically disqualify you from employment.
Employers must conduct a fair and individualised assessment rather than applying a blanket exclusion policy.
If an employer denies you a job due to your criminal record, they must justify why your record makes you unsuitable for the role.
You may have grounds to challenge an unfair decision by lodging a complaint with the Australian Human Rights Commission.

For Employers: Ensuring Fair Recruitment Practices

Employers must:

Assess criminal records on a case-by-case basis, ensuring a direct connection between the conviction and the inherent requirements of the job.
Avoid blanket policies that automatically exclude candidates with any criminal history.
Train HR staff on anti-discrimination laws and fair hiring practices.
Follow the AHRC’s On the Record: Guidelines for the Prevention of Discrimination in Employment on the Basis of Criminal Record to ensure compliance.

Balancing Workplace Integrity with Human Rights

Employers often raise concerns about trust and integrity when hiring individuals with a criminal record. However, Australian law requires that any exclusion based on a criminal record must be directly linked to the inherent requirements of the job.

In BE v Suncorp, the AHRC found that there was no clear link between BE’s past convictions and his ability to perform the role of a Work@Home Consultant. This highlights the importance of avoiding assumptions and ensuring that hiring decisions are made based on an individual’s qualifications and capabilities rather than their past mistakes.

How We Support Workers Facing Discrimination

As employment and human rights advocates, 1800ADVOCATES is committed to assisting workers who experience discrimination in the workplace. While we do not provide legal representation, we offer guidance and support to workers who believe they have been treated unfairly.

We can:

Help you understand your rights under Australian law.
Assist you in preparing a complaint to the AHRC or Fair Work Commission.

If you believe you have been unfairly treated in the workplace due to a criminal record, contact us at 1800ADVOCATES for general information and guidance.

Final Thoughts: Fair Employment for All

The case of BE v Suncorp serves as a crucial reminder that workers should not be unfairly judged on their past and that employers must ensure that their hiring practices comply with human rights principles. Employment discrimination laws exist to provide equal opportunity for all Australians, including those with prior convictions.

At 1800ADVOCATES, we remain dedicated to ensuring fairness, equity, and justice in employment. If you need support regarding workplace discrimination, reach out to 1800ADVOCATES today.

Disclaimer

This article provides general information only and is not intended as legal advice. 1800ADVOCATES is not a law firm, and we do not provide legal representation. We are employment and human rights advocates committed to supporting workers in understanding their rights. If you require legal advice, we recommend consulting a qualified solicitor or legal service provider.