Most legal and public discussion on criminal records has focused on hiring discrimination. But new research reveals a surprising legal grey area: there is almost no legal guidance on whether it’s fair to dismiss existing employees simply for having a criminal record, despite national figures showing most criminal records are a result of low-level traffic and vehicle regulatory offenses.

The paper, Collateral Damage: Unfair Dismissal as an Invisible Punishment for Employees’ Criminal Records was led by law employment expert Associate Professor Sandra Noakes and highlights a growing trend: employers increasingly scrutinising off-duty behaviour, including employees’ conduct on social media, and past criminal behaviour outside of work. This is in despite of the long-standing legal principle that employees have a right to a personal life outside work. 

The study introduces the concept of “collateral consequences” – the hidden, long-term effects of a criminal record that often continue long after a person has served their formal sentence. These “collateral consequences” can occur even in the case of minor offences.  

“The criminal justice system already imposes penalties. Workplaces shouldn’t become an extension of that system unless there’s a clear, job-specific reason. 

“In most cases, employers should not be allowed to dismiss an employee because the criminal record reflects badly on the employer. Most employees are not paid to be their employer’s brand ambassadors when they are ‘off the clock’,” Associate Professor Noakes said. 

The researchers urge courts and tribunals not to assume a connection between a person’s criminal record and their job performance. Instead, decision-makers should be required to clearly articulate why the record matters to the requirements of the role.  

“For example, a criminal record for drink driving resulting in a worker losing their licence would be relevant if the worker was employed as a driver. A criminal record relating to vandalism might be relevant for a school teacher, who is supposed to model positive social behaviour to their students,” Associate Professor Noakes said. 

The research recommends a new legal framework centred on fairness, relevance, and rehabilitation. Among the proposals: a direct link should exist between the specific requirements of the job and dismissal based on a criminal record; better alignment of unfair dismissal laws with anti-discrimination laws and the protection of an employee’s right to a personal life; and a reduction in “invisible punishments” that prevent reintegration after justice has been served.