Recently settled case in the Labour Court demonstrated that excluding a job applicant because of their criminal record is only lawful when the requirements of that job explicitly outline and justify the need for a clean criminal record.

However, legal experts say that the court’s decision ultimately delinked trust and honesty from the inherent requirements of a job, which was “concerning.”

ENS Africa’s Nils Braatvedt, Kim Vova, and Lutho Zono examined the background, outcome, and subsequent analysis of the recent court ruling in O’Connor v LexisNexis.

The experts said that “this decision emphasises the risk of automatically excluding applicants from employment based on an inherent trait such as a criminal record.”

Background

O’Connor [first name omitted] applied for a senior data expert role at LexisNexis. As part of the recruitment process, the company required applicants to declare whether they had ever been criminally charged.

Acknowledging his past theft conviction from 2001 had been expunged, O’Connor was initially offered a job by LexisNexis based on the outcome of a background check.

LexisNexis withdrew their job offer following the check, which unveiled six theft charges, one fraud charge, and two charges of obstructing justice.

Aggrieved at this decision and after unsuccessfully attempting to settle the dispute at the Commission for Conciliation, Mediation and Arbitration (CCMA), O’Connor approached the Labour Court.

He alleged that LexisNexis unfairly discriminated against him based on his past criminal convictions, basing the argument on a section of the Employment Equity Act that prohibits “unfair discrimination” in any employment policy or practice.

Court ruling

In considering whether O’Connor had been unfairly discriminated against, the court assessed whether the differentiation based on a criminal record was ” arbitrary.”

The court found that having a criminal record is an inherent attribute that is connected to how a person is viewed in society. Additionally, the court said that the idea behind criminal justice in South Africa is that once a criminal have paid their debt to society, that person must be allowed back into society.

“Accordingly, the Labour Court found that differentiation on the basis of a criminal record is an arbitrary ground as contemplated in section 6 of the EEA,” said Braatvedt, Vova, and Zono.

Additionally, the court had to ascertain whether discrimination was justifiable on the basis that it was an inherent requirement of the job for O’Connor to have a clean criminal record.

The court reached the conclusion that the position did “not require a significant amount of trust and honesty”, where the possibility of O’Connor’s rehabilitation should be completely disregarded.

It, therefore, found that LexisNexis did not demonstrate that a clean criminal record was an inherent requirement for the role and ordered that it would be just and equitable for LexisNexis to employ Mr O’Connor in the role.  

Legal Commentary

“What is perhaps concerning about the Court’s decision is the delinking of trust and honesty from the inherent requirements of a job,” said the ENS experts.

The ultimate decision was influenced by LexisNexis’ inadequate response to the claim’s core issues, with the court suggesting a different outcome had they engaged with the allegations.

However, the legal experts said that “the decision seems to contradict the common law principle that there is a reciprocal duty of good faith which obliges an employee to perform work in a trustworthy and honest manner indeed, trust underpins the employment relationship.”

“Insofar as the Court found that Mr O’Connor’s role did not require a significant amount of trust, there is either trust, or there is not an employer cannot be expected to tolerate a degree of untrustworthiness or dishonesty regardless of how clerical or geographically distinct an employee’s work may be,” they added.

The ENS experts said that, in their view, the enquiry should have started with the assumption that trust and honesty are essential for any job, and the key question should have rather been how a 20-year-old criminal conviction affects an employer’s trust in the applicant.

Things to note going forward

“Employers should bear in mind that excluding an applicant because of their criminal record is only lawful when the inherent requirements of the job legitimately require a clean criminal record,” said the experts.

A noteworthy part of this case involves O’Connor’s upfront disclosure of his criminal history, showing “a degree of honesty” despite potential employment consequences.

“Employees who refuse to disclose their criminal convictions when they have been asked to do so could be guilty of misconduct,” said Braatvedt, Vova, and Zono.