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A recent finding by the Australian Human Rights Commission (AHRC) that an employer discriminated against a job applicant by failing to offer him employment as a market analyst because of previous drink-driving convictions, highlights the need for caution when carrying out pre-employment criminal record checks on prospective employees. Australia-wide Federal legislation recognises that discrimination occurs where a prospective employee has been denied employment on the ground of their criminal conviction if the nature of the conviction does not affect the candidate’s job requirements. However, the legislation does not go as far as making that discrimination unlawful and although the AHRC can investigate alleged acts of criminal record discrimination, it does not have the power to award compensation or to ‘punish’ the offending employer. Employers should consider making offers of employment contingent upon a criminal records check satisfactory to the employer. Employers should also avoid a ‘zero tolerance’ approach to criminal records in the recruitment process.

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