Asia Pac: Pre-Employment Screening.

Legal News & Analysis - Asia Pacific - Labour & Employment

30 October, 2017

 

Pre-employment screening can be a useful tool in ensuring you are hiring the right person for the right role. Here we look at the issues that may arise with asking a candidate about their criminal record in various jurisdictions in APAC.

 
Can a prospective employer ask a candidate about his/her criminal record?
China Yes, under the PRC law, any person who was subject to criminal penalties is generally required to report such criminal record to his/her employer at the time of employment.
Hong Kong Yes, provided that such information is necessary and not excessive for the purpose of determining whether the individual would be suitable for the particular role. However, in certain circumstances, a conviction will be treated as a “spent” conviction upon which the individual will not be obliged to disclose the spent conviction and it will not be lawful to dismiss the individual or exclude them from employment or otherwise prejudice them in employment because of that conviction or their failure to disclose it (subject to certain exemptions).
Japan Yes. However, information regarding criminal records is considered sensitive and the employer must be careful to ensure that they do not infringe Japanese privacy laws when collecting such information. If the company intends to check an applicant’s criminal record, they must not discriminate and will need to conduct a check for all applicants.

 

Depending on the circumstances, an applicant can potentially bring a discrimination claim against a company for refusing to hire him/her based on his/her criminal history.

Singapore Yes, where the purpose of collection of this information is a purpose that a reasonable person would consider appropriate in the circumstances.
Australia Yes, provided that there is a genuine connection between the criminal record and the inherent requirements of the position. In all jurisdictions there are also special requirements for employers to perform criminal record checks where the employment involves working with children. In addition, each of the states has spent convictions laws that provide that job applicants are not required to disclose information about their spent convictions, unless there is a special exemption or requirement under another law.
Indonesia Yes, however, there is currently no centralised database from which to retrieve comprehensive information on individual criminal records in Indonesia and hence, any criminal clearance from either police or court may not reliable.
South Korea Yes, however only in certain circumstances. The starting position is that checks based on the criminal records information system are expressly prohibited under Article 6 of the Act on the Lapse of Criminal Sentences, except in specific circumstances (such as where it is necessary for a criminal investigation or trial) set out in the legislation.

 

Korea’s Personal Information Protection Act also prevents “personal information managers” from managing any information on the criminal records of job applicants, as these fall under the classification of ‘sensitive information”, which may only be collected with the employee’s specific consent, if the minimum amount of relevant information is collected and where this information is relevant to the performance of the duties of the individual.

Thailand Yes, provided that employees consent to the employer conducting a criminal record check. Employers must comply with the procedures prescribed by the Thai Criminal Records Division including preparation of necessary documents. These documents will include a cover letter requesting a criminal record check, and including information such as the employers’ business, the reason for the criminal record check, the candidate’s name and ID card number, and the proposed position of the candidate.

 

herbert smith Freehills

 

For further information, please contact:

 

Fatim Jumabhoy, Partner, Herbert Smith Freehills LLP

fatim.jumabhoy@hsf.com