The wrong and right of criminal history checking in your policies and procedures

Systemic bias is part of the criminal justice system and disproportionately impacts on Māori and people with disabilities. It contributes to many, long term health, income and educational disparities.

Organisational policies and procedures that ban outright the employment of people with criminal histories reinforce and perpetuate this bias. They are unfair and should be replaced.

Legal constraints

Yes, there are legislative constraints. Social, health and education services in Aotearoa are bound by the Children’s Act 2014, associated regulations, accreditation and licensing requirements.

These rules require safety checking by “specified organisations” like social services, health services, schools and early childhood centres. This involves police vetting and gathering a range of other personal information from referees and others. Risks indicated through the process must be assessed.

But these rules do not necessitate a general employment ban against people with criminal pasts.

The only provision that comes close to a general ban is the rule for criminal histories involving sexual violence or violence against children (ie offences listed in Schedule 2 of the Children’s Act).

No organisation covered by the Children’s Act may lawfully employ a person as a core children’s worker if they have committed one of these offences unless an exemption is obtained. The exemption process is administered by MSD.

So while there are restrictions, there is no legislative mandate for organisational policies and procedures to totally ban the employment of people with criminal histories.

There is also no mandate for a complete ban in policies and procedures against “dishonesty” and “violent” offences. Dishonesty and violence are broad-ranging terms that encompass a wide range of offences. “Violent” offences potentially include minor acts and threats of assault through to much more serious offences against the person. “Dishonesty” likewise covers the $5.00 theft through to deliberate and long term fraud.

Due diligent approach 

A fairer and more humane approach, consistent with legislation, is for policies and procedures to prescribe a due diligence approach. This involves gathering the information required under law and identifying any risks. If there are risks, assessing the level and likelihood of risk and whether and how the risks can be managed in the workplace.

Policy and procedure should also prescribe kōrero/talking with the person concerned about the risks and agreeing and monitoring a risk management plan.

On this approach, a criminal record for dishonesty may mean that the person concerned should not be recruited into a rule involving the handling of money. But that same person may be considered for another type of job in the organisation. Likewise, an offence involving violence committed while under the influence of drugs may not preclude a person from being employed as a youth worker if there is evidence they are in recovery.

Give it a go 

Recruitment involves big decisions that have long term impacts. We want to get it right. It’s tempting to set up no-go zones like criminal histories to try and make the decision process “safer”.

But these exclusions are unfair and unjust. They cause organisations to miss out on a pool of skills and experiences that they and their clients could benefit from.

With a due diligent approach, a person with a criminal history may end up being excluded from employment. But this will reflect a fulsome consideration of the person’s skills, experience and past, a far more reliable exercise then simply excluding them.

The person’s right to be treated with dignity and given the chance to move on from their past will also have been respected.

So give it a try. Review and update your policy and procedure on background checks. If you want help with this or any other organisational policies and procedures, contact us NOW. 

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