A criminal record check can be discriminatory and not how you think

How a criminal record check can be discriminatory – and it’s not what you think

It has become a regular occurrence for employers to conduct pre-employment criminal records checks around the developed world.

Indeed for professional occupations, positions of trust and for those working with children or vulnerable people, it is universally accepted that this will happen.

It is also true that there has been an amount of disquiet in industry and beyond as to whether this can be discriminatory, either in terms of the rehabilitation of an offender or against those disproportionately represented amongst citizens with criminal records.

This is complicated by the need to show that good practice has been applied and the whole process de-risked in terms of employing likely offenders.

Recruiting managers will no doubt have in mind the negative consequences that would affect both their organisation and themselves if they should negligently hire someone who later commits further offences.

That having been said there is good evidence that employers are actually much more likely to take a practical approach to any positive report on a criminal records check1.

Faced with a candidate who has a criminal record, recruiters will in practice apply judgements based on length of time since the offence, severity of the crime, legal outcome and the position being recruited for.

The likelihood is then that where common rules are applied across the globe, discrimination can be minimized for job-seekers who have a less than perfect past.

However in jurisdictions where an imbalance is introduced, even when this is for the best of motives, it is possible for unintended discrimination to be created, not only against personal applicants but also against Irish companies tendering for work.

Back in 2013 Checkback was in discussion with the Commissioners’ Office for Data Protection who confirmed their view that there would be a policy of applying a level playing field to candidates from all jurisdictions. Essentially this meant that it was possible for employers to conduct pre-employment criminal record checks on all applicants, whatever their origins.

There were obviously some conditions; namely that records checks would be conducted upon all employees of a certain class (such as those who may need to travel abroad) and that they would be used for particular purposes rather than as part of a blanket policy thus removing the possibility of bias or discrimination.

Since then a new Commissioner has been appointed and it appears that a re-think may be underway.

So why would this be an issue for Irish applicants?

If the rumours are to be believed then a ban could be implemented on checks on applicants in all but specific cases such as those working with children and vulnerable people.

Checkback has identified two case studies where changes in the rules for criminal records checks could actively discriminate against Irish nationals looking for work.

Case study 1 – The Irish economy has proved to be a significant magnet for multi-national companies looking for EU access and a low tax economy allied to a capable workforce.

It is a common occurrence in such businesses for people to be employed with a foreign travel requirement as part of their job description.

Whilst free movement within the EU means no visas are required, travel to countries outside the European Economic Zone is not quite so straightforward and usually requires a visa, with criminal record restrictions.

Any employer wanting to take on staff for such a position would look to perform a criminal record check as part of the recruitment process to reassure themselves that the new hire would be able to obtain visa access.

In a global employment marketplace, it is likely that Irish applicants will be in competition with people who already have completed criminal records documentation from their country of origin. Should there be a ban on introducing Irish records into the recruitment process it is clear that an employer will be faced with the choice of someone who has a demonstrable ability to obtain visa clearance and the Irish candidate who in this case proves to be a source of uncertainty.

Our second case study concerns an Irish business that is tendering for work abroad.

Many global enterprises will include a requirement that staff be security vetted within their tendering procedures.

It is clear that if a company cannot comply then their ability to compete on a level playing field with businesses from abroad and bring employment into the Irish economy will be severely restricted.

Similarly, companies that have a standard operating model of ensuring that their staff are vetted may well have cause to think twice about locating operation in Ireland.

Checkback continues on an ongoing basis to seek a dialogue with the Commissioner to ensure that unintended consequences do not result from rulings enforced upon Irish firms.


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