15/04/2022
Discrimination based on a criminal record
Must an employee disclose information about his/her criminal record? May an employer exclude an employee from employment on the basis of his/her criminal record?
By Nicolene Erasmus
Updated 2022/03
The Employment Equity Act prohibits unfair discrimination against an employee on any one or more of the listed grounds (race, gender, s*xual orientation, etc.) or on any other arbitrary ground. Two questions employers often ask themselves are whether an employee may be expected to disclose information about his/her criminal record, and, secondly, whether an employee may be excluded from employment on the basis of his/her criminal record. Would such exclusion amount to unfair discrimination on the basis of an arbitrary ground?
As far as the first question is concerned, one needs to take into consideration the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices.
Paragraph 7.3.32 stipulates that “an employer should only conduct integrity checks, such as verifying the qualifications of an applicant, contacting credit references and investigating whether the applicant has a criminal record, if this is relevant to the requirements of the job”.
An employer, paragraph 17.3.6 provides, “may not collect personal data regarding an employee’s s*x life, political, religious or other beliefs, or criminal convictions, except in exceptional circumstances where such information may be directly relevant to an employment decision”.
The above is in accordance with the ILO’s guidelines, which also provides that “despite the sensitivity of these data, their collection cannot simply be excluded a priori. For example, depending on national law, political beliefs could be considered in the recruitment of a journalist by a newspaper affiliated to a particular political party; or information on trade union membership might be considered in relation to automatic union dues deduction. In short, because certain personal data are usually qualified as especially sensitive does not necessarily exempt them from collection. Their sensitive nature does, however, require that certain principles be respected to offset the worker’s weaker position in the employment relationship, which can constrain free choice in determining the use of their personal data”.
It seems as if one could conclude that, despite the fact that information about an employee’s criminal record qualifies as sensitive information, the request for such information would be permitted when an employee’s criminal record is relevant to the decision to appoint or not to appoint, or to dismiss an employee. For example, an employee who was found guilty of armed robbery could be expected to disclose his/her criminal record, and could be excluded from employment as a security guard.
As far as the second question is concerned, some guidance is provided by the CCMA in Nombewu/Department of Rural Development and Land Reform [2017] 1 BALR 85 (CCMA). The candidate applied for a senior administrative clerk position at the respondent and was denied the position as a result of her criminal record.
The Director of Operations, Ms Baulackay, wrote a submission indicating that the applicant not be appointed as she presented a "risk". She testified that it was a risk to appoint someone with a criminal record in a position that required assistance with the capturing of land claims and the lodging of claims. The employer admitted that the applicant would have been appointed had she not had a criminal record.
Referring to Harksen v Lane NO and others 1998 (1) SA 300 (CC) and Ntai and others v South African Breweries Ltd [2001] 2 BLLR 186 (LC), the commissioner explained that in the first matter the “test” to be applied is:
• whether the differentiation amounts to "discrimination"?
• if the discrimination is on a specified ground, then the discrimination would have been established
• if it is not on a specified ground, then whether or not there is discrimination would depend upon whether, objectively, the ground is based on attributes and characteristics that have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.
Applying the “test”, the commissioner held that the applicant alleged that the differential treatment was on an arbitrary ground, and specified the actual ground as “having a criminal record”. The respondent's witness testified that she had indeed not recommended the applicant for appointment, as the applicant presented a risk due to her criminal record. It is, therefore, possible to determine whether such a ground is based on attributes or characteristics that have the potential to impair one's human dignity or cause offence in a comparably serious manner. In fact, the applicant was not appointed to the position as she had a criminal record. Discrimination had, therefore, been established by the applicant.
Referring to the second matter (Ntai), the commissioner pointed out that the Court had indicated that "litigants who bring discrimination cases to the Labour Court and simply allege that there was "discrimination" on some or other "arbitrary" ground, without identifying such ground, would be well advised to take note that the mere "arbitrary" actions of an employer do not, as such, amount to "discrimination" within the accepted legal definition of the concept.
The applicant had indeed proved an arbitrary ground for discrimination, that the conduct of the respondent had not been rational, that the conduct amounted to discrimination, and that the discrimination was unfair.
An attack on an employee’s dignity, such as exclusion on the basis of his/her depression or criminal record, will undoubtedly be regarded as unfair discrimination on an arbitrary ground. Employees who do not know the “reason” for dismissal or discrimination, and who merely allege that an employer’s conduct is discriminatory, will not succeed with a discrimination claim. Similarly, an employee who, for example, is not qualified for a specific position, will not be able to claim that “the lack of qualifications” amounts to unfair discrimination on arbitrary ground.
This article does not constitute legal advice and is based on the authors interpretation of legislation and relevant case law. For an informed opinion and/or assistance with a labour related matter, readers are encouraged to arrange a formal consultation with the author.
