Individuals with a criminal record may be faced with significant challenges when seeking employment. In South Africa, employers may legally exclude an applicant from consideration for LexisNexis. As part of the recruitment process, LexisNexis required Mr O’Connor to declare whether he had ever been criminally charged. Mr O’Connor confirmed that he had been convicted, but explained that his criminal conviction ‘for theft in 2001 … has been expunged’. LexisNexisof O’Connor v LexisNexis.
Mr O’Connor applied for the role of Senior Data Discovery and Enrichment Expert at LexisNexis. As part of the recruitment process, LexisNexis required Mr O’Connor to declare whether he had ever been criminally charged. Mr O’Connor confirmed that he had been convicted, but explained that his criminal conviction ‘for theft in 2001 … has been expunged’. LexisNexis offered Mr O’Connor the job pending verification of credentials, including a criminal background check. However, after receiving the outcome of the verification, LexisNexis retracted the offer on the basis that it had revealed six counts of theft, one count of fraud and two counts of defeating the ends of justice.
Aggrieved by LexisNexis’ conduct, and after attempting to conciliate the dispute at the CCMA, Mr O’Connor approached the Labour Court on an urgent basis. He alleged that LexisNexis’ actions, inter alia, unfairly discriminated against him on the basis of his past criminal convictions as contemplated in section 6 of the Employment Equity Act (“EEA”). This section prohibits unfair discrimination in any employment policy or practice on a listed ground (such as race, gender and pregnancy) or an arbitrary ground.
In considering whether Mr O’Connor had been unfairly discriminated against, the Court conducted two enquiries. Firstly, it assessed whether the differentiation on the basis of a criminal record was an “arbitrary ground” as contemplated in the EEA. This required an assessment of whether the differentiation was based on attributes or characteristics which have the potential to impair the fundamental dignity of human beings as a member of that group in a manner that is analogous to discrimination on the basis of a listed ground. The Court found that having a criminal record is an inherent attribute that is intimately connected to how a person is viewed in society. The idea behind criminal justice in South Africa is that once a criminal has 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.
The second enquiry undertaken by the Court was whether the discrimination was justifiable on the basis that it was an inherent requirement of the job for Mr O’Connor to have a clean criminal record. The Court examined the nature of the work required which included categorising legal information and the fact that Mr O’Connor would be working remotely. The Court reached the conclusion that Mr O’Connor’s position did not require a significant amount of trust and honesty and certainly not so much that the possibility of Mr O’Connor’s rehabilitation should be completely disregarded. The Court therefore found that LexisNexis did not demonstrate that a clean criminal record was an inherent requirement for the role. It therefore concluded that by excluding Mr O’Connor from the role on the basis that he lacked a clean criminal record, it unfairly discriminated against him. The Court ordered that it would be just and equitable for LexisNexis to employ Mr O’Connor in the role.
This decision emphasises the risk of automatically excluding applicants from employment based on an inherent trait such as a criminal record.
What is perhaps concerning about the Court’s decision is the delinking of trust and honesty from the inherent requirements of a job. In fairness to the Court, it must be emphasised that its decision was partly based on LexisNexis’ failure to substantively deal with the merits of the claim in its papers. The Court specifically stated its finding may have been different if LexisNexis had chosen to engage with the allegations. However, 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. The employee may still be privy to confidential information which could be abused or may, given the remote working situation, falsify hours worked for overtime claims. In our view, the enquiry should have proceeded from the premise that trust and honesty are inherent requirements of a job. The question that ought to have been asked was what impact the criminal conviction from 20 years ago had on the ability of the employer to trust the applicant.
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. The decision in O’Connor v LexisNexis highlights that a clean criminal record is not automatically an inherent requirement of the job.
Another interesting aspect of this case is the issue of disclosure. Mr O’Connor was forthright about his criminal record from the outset, which actually demonstrated a degree of honesty considering the impact that it could have had on his prospects of employment. Employees who refuse to disclose their criminal convictions when they have been asked to do so could be guilty of misconduct.
Nils Braatvedt
