Right to participate freely in society – ruling clarifies criminal history discrimination in employment process

An April 2024 decision of the Labor Appeal Court of South Africa, O’Connor v. LexisNexis, reminds employers that legal protection against unfair discrimination in the workplace extends to job applicants and that employers should carefully consider the reasons for making staffing decisions. The case involved an issue of unfair discrimination under the Employment Equity Act and the refusal to hire a candidate based on his criminal history. The court ruled that the unfair discrimination in this case was based on arbitrary grounds and that the plaintiff’s criminal history was irrelevant to the inherent requirements of the position.

This case highlights the risks associated with the systematic reliance on factors used by employers to select or reject staff. Companies must constantly consider why they are seeking candidate information and whether reliance on this information will comply with legal criteria. There is often weak evidence of the link between a factor considered to have a direct impact on recruitment selection and the true requirements inherent in a vacant position or role. For example, if a candidate for a position of trust has a history of dishonest behavior, this may constitute a disqualification for the position. When considering applications for prescribed officer positions, statutory positions which require incumbents to be fit and competent persons (e.g. solicitors, estate agents, auditors) and positions with high integrity requirements ( financial directors, compliance, personal protection), this may justify the disqualification of candidates whose recent convictions call into question their integrity or who have been dismissed for misconduct at work involving any form of dishonesty. But expunged fraud convictions dating back more than 20 years, for example, should not automatically disqualify a candidate from being employed in a position where there is little other than the normal requirements of trust and loyalty expected of each employee. Likewise, refusing to hire someone as a driver because they were convicted of drunk driving 20 years ago when they were a teenager, but have kept a clean record since then, will hardly survive a legal challenge.

The judgment draws on a number of previous cases to analyze what constitutes arbitrary grounds in the context of unfair discrimination. Although South African employment equality legislation lists a wide range of protected grounds, it also allows for protection against unfair discrimination on grounds which may not be listed in the legislation but are nevertheless arbitrary. The court confirmed that for such an action to be successful, it must be proven that the discrimination is based on “attributes or characteristics that may infringe upon or harm the fundamental dignity of persons as human beings.” ‘a manner comparable to that of others’. serious as discrimination based on an enumerated ground, such as race, gender and culture.

The applicant’s criminal conviction is an inherent attribute closely linked to how society perceives him or her. The Court concluded that by not allowing people convicted of criminal offenses to reenter society, we are denying them their right to participate freely and with dignity in society. This resulted in the ground being treated as if it were listed, carrying the same weight as discrimination based on race, ethnicity, gender, sexual orientation and other protected grounds.

Written by Johan Botes, Partner and Head of Employment, Baker McKenzie Johannesburg