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Bulletin | The HR Space

Evaluating Criminal Record Checks: Proceed With Caution

Fasken
Reading Time 4 minute read
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Overview

Labour, Employment & Human Rights Bulletin | HR Space

Some employers routinely require prospective and existing employees to undergo criminal record checks. But what should an employer do if an employee has a criminal charge or conviction? A recent case[1] serves as a reminder to employers to tread carefully.

What Happened?

The employer required the employee, who was recently hired into a safety-sensitive labourer position, to undergo a criminal record check. About two months after he began working, the local police department contacted the employer to inform it that the employee was refusing to provide necessary information for the criminal record check. The employer’s HR Director instructed the employee to provide his criminal record check results to her before working any more shifts.

The employee refused and worked four more shifts before providing his results. Upon discovering he had a drug-related criminal charge from 2011, the HR Director allegedly said “whoa - that’s only 7 years ago”, and that she needed to talk to a manager about whether to keep him “on board because of the charges”. The HR Director denied making those comments and said she only told the employee that she needed to talk to a manager to determine how to proceed. The HR Director also asked the employee if he still used drugs, as she was concerned about possible impairment on the job. He admitted to regularly using marijuana after work. Following that discussion, he was not scheduled for any more shifts, and the employer terminated his employment a month later for his lack of honesty and integrity, his refusal to follow directions, and safety concerns surrounding his possible impairment at work.

The employee filed a human rights complaint against the employer and the HR Director alleging discrimination contrary to Section 13 of the B.C. Human Rights Code, which prohibits an employer from refusing to employ a person because that “person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person”. The Tribunal has interpreted Section 13 to extend to criminal acts for which no charges were laid, and to criminal acts for which charges were laid but no conviction was registered.[2]

What did the Tribunal Decide?

The employer and the HR Director applied to dismiss the complaint, and the Tribunal denied their application. While the Tribunal recognized that they had concerns unrelated to the criminal charge, the timing of the termination and the alleged comments made by the HR Director were enough, if proven, to support a reasonable inference that the criminal charge was a factor in the decision to end the employment relationship.

Takeaways for Employers

Conducting criminal record checks may pose human rights risks to employers. To mitigate those risks, employers should be careful in their commentary, and mindful of the timing of employment-related decisions – while timing cannot always be controlled, it is often referenced as evidence of potential discrimination.

It is important to note that not all provinces prohibit discrimination on the basis of a criminal charge or conviction. Advice should be sought to determine an employer’s specific obligations under the laws in their jurisdiction. For example, some employers are required by legislation to conduct criminal record checks in certain situations.

In provinces with similar prohibitions as B.C.’s against discrimination on the basis of a criminal charge or conviction, there is no duty to accommodate if the employer proves that the charge or conviction is related to employment. To decide if a charge or conviction is related to the employment, an employer must consider the surrounding circumstances, including:

  • the details of the offence and whether the behaviour, if repeated, would pose any threat to the employer’s ability to carry on its business safely and efficiently;
  • the person’s age at the time of the offence and whether there were extenuating circumstances; and,
  • the length of time between the offence and the employment decision, and what has happened in that time (e.g. the person’s efforts at rehabilitation, their employment history, and whether or not the person has shown any tendencies to repeat the behaviour).

A successful claim of discrimination only requires that the charge or conviction be one factor, not the only or primary factor, in the employment-related decision.

If you have questions about criminal record checks, please contact the author or your regular Fasken lawyer.



[1] Farquhar v. City of Nelson and another, 2021 BCHRT 62

[2] Clement v. Jackson and Abdulla, 2006 CHRT 411

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