Questions about criminal records in the employment context most frequently arise in the following circumstances:
- The Hiring Process
where a potential job candidate has a criminal record - The Discipline Process
where a current employee is convicted of a criminal offence
This article will discuss the employer's obligations in each instance.
The Hiring Process
Refusing to hire an applicant because they have a criminal record will amount to discrimination unless, the criminal conviction in question is related to the intended employment.
When tasked with a question of discrimination on the basis of a criminal record, a court or tribunal will make the following assessment:
1. Prima Facie Discrimination?
The applicant bears the onus of proving prima facie discrimination (discrimination on its face). That means proving that the applicant:
- has a protected characteristic;
this prong of the test is established where the applicant has a criminal conviction. - suffered an adverse impact; and,
this prong of the test is established where the applicant is not offered the position for which they applied. - the protected characteristic was a factor in the adverse
impact.
this prong of the test will be established where the applicant is not offered the position for which they have applied either entirely because, or partly because, of their criminal record.
If a prima facie case is not established, the inquiry ends here. If a prima facie case is established, the employer will be required to justify the discrimination by showing that the criminal conviction is related to the intended employment.
2. Related to the Intended Employment?
According to section 6(1)(b) of the Prince Edward Island Human Rights Act, RSPEI 1988, c. H-12 ("HRA"), discrimination in hiring on the basis of a conviction may be justified where the offence is related to the intended employment:
6. Discrimination in employment prohibited
(1) No person shall refuse to employ or to continue to employ any individual
- on a discriminatory basis, including discrimination in any term or condition of employment; or
- because the individual has been convicted of a criminal or summary conviction offence that is unrelated to the employment or intended employment of the individual.
The test for determining whether a criminal record is related to employment was outlined by the BC Human Rights Board of Inquiry in Woodward Stores Ltd. v McCartney, [1982] 3 CHRR 1113 at paragraph 76 [McCartney]:
- Does the behaviour for which the charge was laid, if repeated, pose any threat to the employer's ability to carry on its business safely and efficiently?
- What were the circumstances of the charge and the particulars of the offence involved, e.g. how old was the individual when the events in question occurred, were there any extenuating circumstances?
- How much time has elapsed between the charge and the employment decision? What has the individual done during that period of time? Has he shown any tendencies to repeat the kind of behaviour for which he was charged? Has he shown a firm intention to rehabilitate himself?
In ascertaining the above-noted information, it is important for the employer to explain why the information is necessary. That is:
- the employer has a duty to keep its employees safe and must determine whether a candidate's criminal record is related to the employment such that their safety could be jeopardized; and,
- the employer has an obligation not to assume the record is related to the intended employment based solely on the type of offences contained in the record. The circumstances of the offence and behaviour since the conviction are relevant to the assessment.
The Discipline Process
In addition to preventing discrimination in hiring, section 6(1)(b) of the HRA further states that an employer cannot "refuse [...] to continue to employ any individual" on the basis of a criminal record.
This means that terminating a current employee's employment because they were convicted of a criminal offence which is unrelated to their employment is also discriminatory.
Employer's ought to employ the test as set out in McCartney to determine whether the record is related to the employment in these circumstances as well.
Key Takeaways
Overall, determining whether an offence is related to the employment in question is highly fact specific. Before determining whether to employ, or continue to employ, an individual with a criminal record, employers must make sufficient inquiries to determine whether the criminal record is related to the employment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.