Check-up time for security check systems

Anthony Drake, Senior Associate | Tuesday 1 August 2006

Security checks are now a normal and accepted part of the employee recruitment process - or they should be.

However, media headlines periodically report examples of employers who find out down the track about staff with convictions. We've seen this across all manner of private and public sector organisations - many of them with considerable security processes in place.

So where do we trip up?

Employers are at times doing security screening after they've already decided to hire and the employee has started work. In other instances, the questions being asked of a prospective employee are not coming up with enough, or the right type of, information upon which to make an informed decision.

Starting point

Getting in place a carefully drafted security screening policy - and communicating that to those involved in recruitment - will go a long way to guiding a consistent and correct process when it comes to dealing with criminal histories.

The ideal situation will mean that a successful job applicant doesn't start work until the employer has received a satisfactory security clearance. Given that sometimes these checks can take several weeks to be completed and workplace practicalities, it may be useful to include in the policy a framework that allows prospective employees to begin work before the clearance is received, but only on a conditional basis.

Application forms and interviews

An employer should ensure that its application form includes a clear statement that if the security screening results are unacceptable then employment will be terminated. The form should ask specific questions about the job applicant's criminal history and should be worded broadly to help ensure the information sought is actually given. Employers should be aware that a job applicant is not required to offer any information that is not specifically asked for. While they can't lie, they are not required to inform their prospective employer of information that may jeopardise their appointment, if the employer does not specifically ask for it.

Clean Slate scheme

The Clean Slate Act, passed by Parliament in 2004, is designed to allow people with less serious convictions who have been conviction-free for at least seven years to put their past behind them. It also enables "eligible individuals" - and this can include job applicants - to state they have no criminal record. Whether they can do this depends on various factors such as the nature of their convictions.

The legislation does not focus on what a person, such as an employer, can ask the individual. Its focus is on the responses that the individual is entitled to give when answering questions about his or her criminal record. It remains acceptable to ask job applicants whether they have had any criminal convictions.

If the applicant is "eligible" to have their convictions concealed under the Act it is the responsibility of that person to know this He or she will then simply answer "no" - as they are entitled to do. If the applicant is "not eligible", they must disclose the conviction.

Employers should know that information provided by the Ministry of Justice will not show any convictions that are eligible to be concealed under the Act. Further, an individual is only eligible if they continue to meet the criteria - if they are convicted of another offence, any previously concealed convictions will no longer be concealed.

As well as the questions asked on application forms, job seekers should be specifically asked about their criminal histories during the job interview process. They should not, however, be probed about "clean slated" convictions. Employers who do ask could be liable for a fine of up to $10,000. It is an offence for an employer to require an individual to disregard or forfeit the effect of the Clean Slate scheme either by questioning or requiring them to provide a full criminal record, instead of a Clean Slate record.

To minimise the risk of breaching the Act, an employer should ensure that those involved in interviewing applicants are aware of the effect of the Act and the fact that they cannot compel an individual to disregard the Clean Slate scheme. At the same time, they should be aware that the employer is entitled to ask applicants whether they have any criminal convictions.

What if a person has started before the security check is completed?

Should a person have already started work and then the employer receives an unsatisfactory security check, the employer should approach the person and seek their response.

It may be that the Ministry of Justice report has made an error (although this is rare) or that there were circumstances around the offending that may mean the employer could or should use their discretion to allow the person to continue working.

In most cases after an employer has put the unsatisfactory record to the person, the employer will want to terminate their relationship - both because the person falsely declared their background in the application form or during the interview and because their background may mean the employer cannot have them working for the company.

If a person has misrepresented themselves during the application process then an employer may be able to terminate the arrangement immediately on the grounds of misrepresentation. We suggest that any employer seeks specific advice about terminating employment before making any decisions of this kind as each case will depend on the particular circumstances.

Setting criteria

It is not easy to set out a comprehensive list of criteria that an employer should take into account before making decisions about whether or not to decline applicants who have criminal records.

If an employer is too descriptive, then it may limit its discretion to employ people who it wishes to, regardless of their record. An example may be where a person who would otherwise be unsuitable on their application but comes highly recommended or is a friend of the business. If an employer breaches its policy to allow for these types of exceptions, then it may expose the company to risks of allegations of disparity treatment.

Offences that may cause applications to be rejected include:

• violence;
  
  
• abusive behaviour;
  
  
• serious or continual drug offences/abuse;
  
  
• alcohol-related offences or dependency;
  
  
• sexual offences;
  
  
• dishonesty; or
  
  
• if the applicant is currently serving a sentence or has charges pending.

Offences that may lead to immediate rejection include:

• any offence where the maximum penalty is a term of imprisonment of seven or more years;
  
  
• any driving convictions where the applicant will be required to drive a vehicle as part of the role;
  
  
• any conviction that the employer determines may adversely affect the reputation of the company; and
  
  
• fraud-related offences where the applicant is required to handle or be responsible for money.

Internal promotions

Before moving employees to new roles, prudent employers will check the individuals' personnel files to see what, if any, convictions the employee has and then assess what attributes are needed for the particular role. An employer should also ask the employee if there is any change to their security check since they last had it done. For internal candidates (and for most positions), it may not be necessary to repeat the security check each time a person is applying to move to a new role, provided the employer checks with the employee that their security status has not changed.

For roles that involve a high level of responsibility or possibly cash-handling or accounts work, a prudent employer may wish to ask for a new security check to be done.

What happens if an existing employee receives a criminal conviction?

There will be cases where an employer finds out that an employee has been convicted of an offence while working for the company. News may come from the individual themselves, the proverbial grapevine or possibly even the media.

Firstly, of course, the employer needs to be sure of the facts, including that there has actually been a conviction and for what offence. Then it becomes a matter of judgment as to whether this could potentially impact employment.

The employer needs to consider each individual situation carefully, taking into account:

• whether the conviction will impact the employee's ability to do their job;
  
  
• was the offence committed while they were actually working - during work time or on work premises?;
  
  
• has any damage been done to the relationship between employer and employee e.g. has any trust been eroded?

If the employer decides that the impact is sufficient to require further action, it must follow a fair and proper process, including meeting with the employee, giving the employee the opportunity to respond to the concern, and consider whether disciplinary action, such as a warning or even dismissal, is warranted.

We suggest an employer may be wise to get specific advice in this situation.

Check-up time

Hindsight as we know is a wonderful thing - but foresight is far better. We recommend employers take the time now to check that their security screening processes are up to scratch - and that may include drafting and introducing a security screening policy.

With policies and procedures in place, a refresher for those involved in the recruitment process is a further step to help ensure the correct practice follows.

For further information,please contact your usual Bell Gully advisor or:

AUCKLAND

Rob Towner
Partner

WELLINGTON

Andrew Scott-Howman
Partner