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Terminated Over a Criminal Record? Human Rights Tribunal Orders Employer to Pay
Discovering that a new employee has a criminal record is not automatic grounds for dismissal. A BC Human Rights Tribunal decision involving a tech company that terminated an employee one week into his job after finding out about past robbery and obstruction convictions resulted in a $10,000 award for injury to dignity. The Tribunal found that the convictions played a role in the termination decision and that no evidence was presented showing any connection between those convictions and the employee's remote, tech-based role. While a BC decision, the principles apply directly to Ontario employers navigating terminations connected to criminal history.
Are you considering terminating an employee after discovering a criminal record or past conviction?
A termination connected to a criminal record can give rise to a human rights complaint if the conviction is not directly relevant to the role. Get legal advice before making any decision based on a background check or disclosed record.
Call: 1-800-771-7882 Speak With an Employment LawyerWhat happened
The employee was hired for a remote role at a software company. During the hiring process he did not disclose that he had a criminal record. Shortly after starting work, the employer conducted an online search and found media coverage of his past convictions for robbery and obstruction of justice. The employer confronted him and he admitted he had previously denied having a record. The employer terminated him days later, citing reputational concerns and a breakdown of trust. The employee filed a human rights complaint.
The employer argued the convictions were relevant to job duties and workplace safety. The Tribunal disagreed, finding no evidence that the offences had any connection to the employee's remote tech role. It awarded $10,000 for injury to dignity, feelings, and self-respect but denied wage loss damages because it found the employee likely would have been dismissed anyway for the non-disclosure, independent of the convictions themselves.
What the Tribunal found
The convictions were a contributing factor in the termination
Under human rights law, discrimination does not need to be the sole reason for a termination it only needs to be a contributing factor. The Tribunal found the employer's decision was influenced by the nature of the convictions and that this influence engaged the protected ground of conviction for an offence unrelated to employment. Even where the employer had other legitimate reasons to act, the human rights protection was triggered.
The employer presented no evidence of job relevance
The employer argued the convictions were relevant to the role and raised safety concerns. The Tribunal found no evidence supporting this. The convictions involved robbery and obstruction of justice. The role was remote and tech-based with no apparent connection to those offences. Without documented, job-specific reasoning, the employer's reputational concern argument was insufficient to justify the termination on human rights grounds.
The burden of proof rests with the employer
Once the employee established that the conviction was a factor in the termination, the burden shifted to the employer to demonstrate its decision was not discriminatory. The employer was required to show a clear, rational connection between the specific convictions and the specific job requirements. Reputational concern and general distrust without documented evidence of job-relevant risk did not satisfy that burden.
Four employer lessons from this decision
Job relevance is the only defensible basis for acting on a criminal record
A past conviction does not automatically give an employer grounds to terminate or refuse to hire. The question is whether the specific offence creates a genuine, documented risk in the context of the specific role. A robbery conviction may be relevant for a position involving cash handling, alone with vulnerable people, or physical security. It is far harder to justify as relevant to a remote tech role. The assessment must be done role by role, conviction by conviction not by blanket policy.
Reputational concern is not enough on its own
The employer in this case cited reputational harm as a reason for the termination. The Tribunal was unpersuaded without evidence that the employee's past convictions which had received some media coverage would actually harm the employer in its specific market or operations. Reputational concern as a termination rationale requires documentation of the specific reputational risk, its connection to the business, and why it could not be managed in any other way. A general sense that the association looks bad is not sufficient.
Non-disclosure and the underlying conviction are separate issues
The Tribunal found the employer likely would have been justified in dismissing the employee based on the non-disclosure itself misrepresenting a criminal record during the hiring process is a distinct issue that can support a termination on grounds of dishonesty or misrepresentation. However, where the employer conflates the two treating the convictions themselves as the substantive reason while using the non-disclosure as cover the human rights analysis still applies to the convictions. Keep these issues analytically separate, document the reasoning clearly, and get legal advice on which basis for termination is strongest before acting.
Written background check and records policies reduce risk significantly
Employers who have a documented, consistently applied policy on how criminal records are assessed in hiring and employment decisions are in a much stronger position than those who make ad hoc decisions. A policy that defines when background checks are conducted, what offences are relevant to what roles, how disclosures are handled, and what the assessment process looks like demonstrates a structured, non-discriminatory approach. Without such a policy, each decision looks like an individual judgment call and individual judgment calls are exactly what human rights tribunals scrutinize most closely.
Are you managing a termination connected to a criminal record or background check in Ontario?
The connection between the conviction and the role must be documented and specific. Our team advises employers across Ontario on terminations involving sensitive grounds including criminal records and human rights considerations. Get advice before acting.
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Questions about terminations involving criminal records or human rights considerations in Ontario?
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