CRIMINAL BACKGROUND CHECKS
DISCRIMINATION ... UNLESS INHERENT JOB REQUIREMENT

by Kobus Hayward

Dear employer

In the recent judgment of Connor v LexisNexis, the Labour Court found that the employee was unfairly discriminated against due to an offer of employment being retracted after a criminal background check confirmed that the employee had past convictions.

Despite much publicity, this judgment does not change the law in any way. It simply confirmed that criminal background checks may only be conducted when a person applies for a job and a clear criminal record is an inherent requirement of the position. This has always been the legal position, as confirmed by the relevant provisions of the Employment Equity Act.

If a criminal record check is conducted in circumstances where a clear criminal record is not an inherent requirement of the job and it results in the non-appointment of an applicant, it creates an unnecessary risk for the employer as it may constitute a ground for unfair discrimination. Therefore, it would be prudent to reserve these criminal background checks for circumstances where it is instrumental in considering the employment of the applicant. 

While the applicant in this specific case was honest about having a criminal past, the Court found that it was not relevant to the job in question, and the reliance of the employer on the criminal background as a ground to repudiate the employment offer was therefore seen as discrimination.

Notwithstanding the above, NEASA reiterates that trust is the basis of the common law employment relationship, and should always be a consideration, regardless of the job requirements of the position.

Should you have any questions regarding the necessity of criminal background checks, please contact our hotline at 0860 163 272 or send an email to info@neasa.co.za.

Kobus Hayward is the Labour Court Legal Advisor at the National Employers' Association of South Africa (NEASA).

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NEASA Media Department

media@neasa.co.za