Possible new precedent set for hiring employees with criminal records

Source: Moneyweb, 25/04/2024

EREMY MAGGS: I want to stay with crime now. Individuals with a criminal record may be faced with significant challenges when seeking employment, I think that’s a given. Here in South Africa, employers may legally exclude an applicant from consideration for a position if having a clean criminal record is what is termed an inherent requirement of the job. That phrase, inherent requirement, is important, but what exactly does that mean, and when can an applicant be lawfully excluded for having a criminal record?

This issue has been considered in the labour court and a decision handed down in the case O’Connor versus LexisNexis. I’m going to explore that in a little more detail now with labour attorney, Patrick Deale. Patrick, welcome to you, and maybe just as a starting point, very simply, why is this case so important?

PATRICK DEALE: It’s significant, mainly because at a high level, what it does is consider conflicting legal and moral dilemmas in society, at an individual level, an employer level, and at a society level. The relationship in any employment relationship really is between the employer, on the one hand, the individual employee in the context of wider society and the wider society is represented by laws, which are underpinned by morals and principles.

In this case, it has to do with whether or not an employee, who has a criminal record, can be disqualified from getting a job and on what basis they can be disqualified and whether it’s justified or not. So that is the overall idea that lies beneath this particular case.

The idea of discrimination is found in various (statutes), it’s in the Constitution, it’s in the Employment Equity Act, and the Employment Equity Act says that an employee cannot be discriminated against on two bases.

The first is on the basis of listed grounds for discrimination, and those listed grounds are the familiar ones, they are things like you can’t discriminate against people on the basis of race, gender, sex, family, ethnic or social origin and so on. So those are the known bases for discrimination that society generally accepts.

But there are other bases upon which employees may potentially be discriminated against and that is on what they call arbitrary grounds. Arbitrary grounds are things that are not listed and if it’s a case of an arbitrary ground, the employee who says, I’ve been dismissed from an arbitrary ground, has to say, explain what is that arbitrary ground and for the employer to be able to defend it. An arbitrary ground could be something, as the name suggests, something that is not in the list, but could be something, I’m not going to employ you because you’ve got red hair or something like that, which is miles away from ethnic or racial distinctions, characteristics of a person.

So the idea of discrimination [is] that it offends the dignity of the individual.

The case that we are talking about involved this individual, this fellow (O’Connor) applied for a remote work job at LexisNexis and he was (quizzed) on the interview, he passed on the merits of getting the case, and he was asked in the preliminary interview whether he had any criminal record and he said, yes for theft, I do have a criminal record for theft, but it was 20 years ago. LexisNexis said, well, okay, we’re going to accept you, but it’s subject to a criminal check. Which is quite a standard thing, so it was subject to what else came out of the check and when they checked, they said, you did have a criminal record for theft, but it was a lot more than that.

It sounds a lot more that anyway, because there were six counts of theft, one of fraud and defeating the ends of justice.

So it was a lot more magnified than that and based on that, the employer said, no, we can’t accept this, this basically is more serious than we anticipated when you initially interviewed with us and you told us about that. So on that basis, they did not get into a contract with him. In other words, they would not employ him.

The court decided that actually that was unfair, that was discrimination and that LexisNexis had discriminated (against) him because it was arbitrary to say that a requirement of a clean record was an inherent requirement of the job and, in fact, it was not an inherent requirement of the job. So those are the two bases upon which the court decided it.

JEREMY MAGGS: So explain to me then, in what way this is precedent setting and how the ruling could influence future employer policies on criminal background checks?

PATRICK DEALE: Well, it could be actually a very important precedent in the sense that ultimately what this case should have been cited on, I think the focus of the case should have been decided on, this is why it needs to go higher to get a more definite or clearer ruling on all of the issues on these moral dilemmas, versus, for example, fairness versus unfairness and trust versus honesty.

Trust versus honesty really lies at the heart of every employment relationship and that was I think what the fault in this judgment was, is that the court found that because the person was working remotely and even though the person had a criminal record for dishonesty-related crimes like fraud and theft and so on, he was working remotely. There was not a great need for the employer to fear that he could be untrustworthy.

In other words, they were in a way saying to the employer that you are worrying too much about this thing. We don’t think that you should be worrying about the trustworthiness. So we are going to make a decision, that it’s for us to decide whether you worried unnecessarily about the trust. So the case should have been what would the impact of the criminal conviction 20 years ago have had on the ability of the employer to trust the applicant, and quite clearly the employer did not trust the applicant.

No matter what a court might say, they did not trust this employee because of the record and because the employee had not fully disclosed at the preliminary interview the extent of the severity of the crimes that he’d committed.

I don’t think that an external court can determine whether or not an employer should or should not trust an individual. I think that lies at the heart of the problem that comes out of this thing and that’s what the precedent is that could be problematic in future, where you have a court deciding whether or not an employer can trust an employee at inception of employment and decide not to employ that person. This is where the tricky moral dilemmas come in because the ability, there’s a saying, as you know, beauty is in the eye of the beholder, but trust is in the mind of the beholder.

Provided that the reason for the mistrust is rational in some way, it’s not arbitrary. I think it was not correct to find that it was arbitrary because it’s rational that a person who has a criminal record, this dishonesty record, and you’re going to work in an employment relationship, which is underpinned by honesty. That’s perfectly rational to me, it’s not arbitrary and it is an inherent requirement of the job, secondly. So I think that the judgment in this could be tested or should be tested on this so that it’s not the final say on it to set a precedent for the future.

JEREMY MAGGS: Patrick Deale, I am going to leave it there and thank you very much indeed for the explanation on what is, as you say, a very important case.