Criminal record not relevant - discrimination and "inherent requirements"

Employers who propose discriminating against applicants or employees because they allege they cannot perform the requirements of their role because of a criminal record should tread carefully.

An employer discriminated against an applicant because he had two criminal drink-driving offences in the previous eight years. The candidate, who had previously worked for the employer in a similar position, applied for a market analyst position, met the selection criteria, was chosen as the preferred candidate, but was not actually employed.

The employer maintained it did not engage in discrimination under the Australian Human Rights Commission Act, as the candidate could not perform the inherent requirements of the role, namely: