Trust is at the core of the employment relationship. It could be tempting to assume that an employee with a criminal record cannot be trusted. But may employers exclude candidates for employment based on the fact that they have a criminal record, or may an employee be dismissed if the employer discovers that an employee has a criminal record?

Case in point

The issue about denying a person a job based on his criminal record was considered by the Labour Court case of O’Connor v LexisNexis (Pty) Ltd (2024).

LexisNexis is a well-known publisher of legal and other academic texts. The company offered O’Connor a job as a “Senior Data Discovery and Enrichment Expert I”. The job entailed, inter alia, organising and classifying the information published in the company’s various legal products.

When the company discovered that O’Connor had a criminal history, the company retracted the “conditional offer” of employment because a criminal check had revealed six counts of theft, one count of fraud, and two counts of defeating the ends of justice.

After unsuccessful attempts by O’Connor to explain that the convictions took place 20 years ago and that his criminal record had, in fact, been expunged, he referred a dispute to the CCMA for conciliation. The dispute remained unresolved and O’Connor approached the Labour Court for urgent relief. In the application he invoked various provisions of the Labour Relations Act (LRA), the Basic Conditions of Employment Act (BCEA), and the Employment Equity Act (EEA).

Discrimination on an arbitrary ground

Having a criminal record is not listed as a prohibited ground of discrimination (such as race, gender, pregnancy, age, religion, etc.) in terms of section 6 of the EEA. However, the section does refer to “any other arbitrary ground” as a possible basis for an unfair discrimination claim. The Court regarded O’Connor’s criminal record as an arbitrary ground, which it described as “an inherent attribute that is intimately connected to how he is perceived by society”. The question remained whether the company could justify denying O’Connor employment on the basis of his criminal record.

Relevance of criminal record

The Court referred to paragraph 7.3.32 of the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices (the Code), which states that:

An employer should only conduct integrity checks, such as verifying the qualifications of an applicant, contacting credit references and investigating whether the applicant has a criminal record, if this is relevant to the requirements of the job. (Emphasis added)

The Court further referred to paragraph 17.3.6, which states that:

An employer may not collect personal data regarding an employee’s sex life, political, religious or other beliefs, or criminal convictions, except in exceptional circumstances where such information may be directly relevant to an employment decision. (Emphasis added)

Relevance of criminal record in this case

After considering the available evidence about the nature of the job, the fact that O’Connor would work from his home, doing his job over the internet while using his own resources, the Court found that his criminal history was not relevant to the particular job.

The Court ultimately found that the company’s decision to deny O’Connor the job in question on the sole basis of his criminal history, was without rational justification and constituted unfair discrimination within the meaning of section 6 of the Employment Equity Act.

The company was ordered to re-employ O’Connor in the same position that had been offered to him.

Lessons for employers

It is standard procedure for many employers to obtain extensive information on job applicants before offering a person employment. This may include criminal checks. Obtaining the information is not necessarily a problem. However, the way the information is acted upon may have far-reaching consequences.

There may very well be circumstances where denying a job applicant employment due to a criminal record may be justified. Consider the following examples:

• An applicant for the post of financial manager who has a criminal record for theft or fraud
• An applicant for the post of primary school teacher who has been convicted of sexual offences

While the answer to what is rationally justified is not always obvious, it is important to give proper consideration to the following question: Does the fact that a person has a criminal record materially affect the person’s ability to do the job?

Jan Truter for www.labourwise.co.za