THE DANGERS OF OVER- SCRUTINIZING PROSPECTIVE EMPLOYEES' CRIMINAL AND CREDIT RECORDS
Article by Roodepoort Attorney: LEON WOLLNIK
The Labour Court’s decision in O’Connor v LexisNexis highlights the limits on employers’ ability to scrutinise applicants’ criminal and credit histories during recruitment.
While employers may wish to vet candidates to ensure suitability, the Employment Equity Act (EEA) and the Code of Good Practice make clear that such checks are only permissible when directly relevant to the requirements of the job.
Section 6 of the EEA prohibits unfair discrimination on listed and arbitrary grounds, and other sections extend protection to applicants.
The Code further discourages the collection of criminal or credit information unless exceptional circumstances justify its relevance to the role. In this case, the employer withdrew a conditional job offer after discovering historic convictions that had been expunged, despite the fact that the position was remote and unrelated to his criminal history.
The Court found this amounted to discrimination on an arbitrary ground, impairing his dignity, and ordered the employer to honour the original offer.
This judgment underscores that employers cannot rely on personal discomfort or stigma when assessing candidates with criminal records. Instead, the test is objective: whether the record directly compromises the applicant’s ability to perform the duties or whether statutory or client requirements demand a clean record.
Where no such link exists, excluding a candidate is discriminatory. Importantly, the Court distinguished between legitimate vetting and dishonesty—if an applicant misleads an employer about their history, refusal to employ them would be justified.
The ruling therefore reinforces that integrity checks must be proportionate, job-related, and compliant with the EEA, ensuring that recruitment practices respect both fairness and dignity.
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