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When applying for a job, one is usually asked the question: “Do you have a criminal record?” and one’s answer will determine if they are employable for that job or not.
However, is a clear criminal record an inherent requirement of any job?
Biron Madisa, associate in employment law practice at Cliffe Dekker Hofmeyr says a clear criminal record is not an inherent requirement of any job. It can, however, be an inherent requirement of a specific job.
Madisa says the view that a clear criminal record is not an inherent job requirement was confirmed by the Labour Court in the recent decision of O’Connor v LexisNexis (Pty) Ltd (P19/24) [2024] ZALCPE 11.
“The court found that on the facts before it, a clear criminal record was not related to the inherent requirement of the job in question,” he added.
He says a clear criminal record might be an inherent requirement in a specific job in the financial sector.
The reason for this could be attributed to the nature of the job as one would have access to confidential information and access to large amounts of money. Therefore, financial institutions can justify the requirement for an employee to have a clear criminal record.
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In the case of O’Connor v LexisNexis (Pty) Ltd (P19/24) [2024] ZALCPE 11, the judgment handed down noted: “Unfair discrimination under the Employment Equity Act (EEA) due to refusal to employ because of criminal history unfair discrimination based on arbitrary ground.”
Elsworth O’Connor took publisher of legal and other academic texts, LexisNexis to Labour Court for retracting a job offer after finding out O’Connor has a criminal history.
The job in question was a Senior Data Discovery and Enrichment Expert, the duties of the job included organising and classifying the information published in the respondent’s various legal products. After a successful interview, O’Connor was informed a job offer would be made.
However, before the offer was made, he was asked to fill in a RefCheck Consent and Indemnity Form, which included having to confirm whether he has been criminally charged before or not. O’Connor did indeed state he had been criminally charged in 2001 for theft which has been expunged.
“On 27 January 2024, the applicant provided his fingerprints at a local PostNet for the purposes of the respondent conducting a criminal background check,” the judgment reads.
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On 29 January 2024, the company sent O’Connor the job offer. In an email, the company stated “This offer of employment is subject to RefCheck verifying all your credentials as valid, criminal checks being clear and a positive reference from a previous employer.”
O’Connor proceeded to accept the offer on the same day it was sent. To his surprise, he received an email on 6 February 2024 from the company stating they were retracting the conditional offer of employment because the criminal check revealed six counts of theft, one count of fraud, and two counts of defeating the course of justice.
Even after O’Connor explained the convictions took place 20 years ago and his criminal record had been expunged, he was not offered his job back. He, in an email, used the words “I plead with you [to] allow me the opportunity to explain…” but the company never replied.
The remedy O’Connor wanted was to be offered an opportunity to do the job he was offered by the company. Judge Mark Meyerowitz ordered the company to employ O’Connor as the Senior Data Discovery and Enrichment Expert I on the terms and conditions set out in the signed written contract of employment.
POPIA is the Protection of Personal Information Act, which aims to protect people’s personal information; and regulates how companies and organisations handle personal data. The act also gives individuals control over their own information.
Madisa says an individual’s criminal history is included in the POPIA. As this is also private information. “The Act itself recognises this right to privacy, which includes the right to protection against unlawful use of personal information.”
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He explains that an employer has the right to retract an already made offer if a clear criminal record is an inherent requirement of the job in question.
The employer can also retract an offer if the potential employee fails to disclose the criminal record. “The employee, if already appointed, can be charged with misrepresentation or dishonesty and dismissed on that basis.”
Madisa says there must be a balance between the individual’s right to privacy and the interest of the employer on the other hand. “This means that the employer must have a justification for interfering with the privacy rights of an individual.”
“An employer should not conduct and subsequently rely on this check to disqualify a prospective employee in instances where a clear criminal record is not related to the inherent requirement of the job,” says Madisa.
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