An employer may be obliged to conduct a police check where there is a legal requirement that an employee or job applicant should not have a certain criminal record.

However, an employer should only ask job applicants and employees to disclose criminal record information if certain criminal convictions or offences are relevant to the inherent requirements of the job.

Asking an applicant or employee irrelevant questions about their criminal record and then relying on this information to treat the person less favourably could be discrimination. The Commission can investigate complaints of discrimination in employment on the basis of criminal record and, where appropriate, try to resolve them by conciliation.

Employees and applicants must consent to a police check. If a police check is required for a job, this should be stated in information sent out to job applicants.

Example: An applicant for a job as a nurse was told their application would not be considered if they did not consent to a police history check. The employer could not show that it was relevant to the inherent requirements of the job that a police check be completed. This could be discrimination.