Criminal record and struggling to get a job? Read on.

Can an employer refuse or retract an offer of employment 

It is a common misconception that individuals with criminal records face permanent barriers to employment, indeed, in various instances individuals who have such records are often unfairly prevented from receiving gainful employment due to previous convictions. But is it lawful to refuse or rescind a job offer on the basis that the applicant has a criminal record? The recent labour court decision, Connor v LexisNexis (Pty) Ltd considered this exact question. In that decision, the court unpacked the decision of the respondent to refuse or retract an offer of employment once it became aware of the applicant’s previous criminal conviction and criminal record.  

Fully remote position  

The applicant in this matter, Mr O’Connor, successfully applied for a fully remote position with the respondent for the position of senior data discovery and enrichment expert. The job description included, though not limited to ‘‘organising and classifying the information that was published by LexisNexis’s various products.”. After having being advised by the respondent that his interview went well and after having been furnished with papers which specifically ask about whether or not the applicant had previous criminal convictions, the applicant disclosed his criminal conviction of theft in 2001, and furthermore that such record had since been expunged. The applicant was thereafter offered employment with the respondent, which offer he accepted and was subsequently provided access to the respondent’s various portals. 

Employment rescinded 

Despite the previous offer of employment and providing the applicant with access to the various work portals, the applicant was subsequently informed by the respondent that the offer of employment had been rescinded on account of his criminal background check returning positive results for the possession of a criminal record and revealed that the applicant had “six counts of theft, one count of fraud, and two counts of defeating the course of justice,”  

Aggrieved by the recission, the applicant referred the matter CCMA for conciliation where the commissioner issued a certificate of non-resolution due to the respondent’s absence. Understandably dissatisfied with this outcome, the matter was referred by the applicant to the labour court on an urgent basis. The question before the labour court was “whether or not the applicant’s criminal history would have affected his ability to do his job?” in formulating its response, the court considered the fact that the applicant would be working from his home which is in the Eastern Cape and the respondent’s offices were in Durban therefore his criminal history would have had absolutely no effect on his job or the ability to carry it out. It was also mentioned that the applicant was discriminated against, on an arbitrary ground according to section 6 of the Employment Equity Act, which refer to the prohibition of unfair discrimination, more specifically in this matter on the basis of his conscience, where he honestly disclosed his previous conviction. The court thus held that the previous criminal conviction could not conceivably affect the business or reputation of the respondent, accordingly the respondent was not justified in its decision to rescind its offer of employment. Accordingly, the respondent was directed to reinstate the offer of employment made to the applicant. 

Employers to tread cautiously  

The value of the decision lies in its reminder to both employer and society that the possession of a criminal record, especially one that has since been expunged should not prevent individuals from opportunities to engage in gainful employment. Especially when the possession of such a record poses limited to no risk to the employer’s reputation. 

In the present case, the respondent does not state with any clarity the grounds upon which or alternatively areas of its business which the applicant’s criminal record posed a substantial threat to. Furthermore, the previous criminal record was disclosed to the respondent when asked, accordingly, the objection to the possession of such a record ought to have been made at that stage.  

The decision serves as a reminder to employers to tread cautiously and to be reasonable in their assessment of job applicants. While the possession of a criminal record may not be preferable for an employee in the banking sector, the same might not be true in other sectors. 

Employers to set reasonable job requirements  

This case is a reminder of an essential balance in the job market. On the one hand, it highlights that individuals who have rehabilitated themselves after past criminal convictions should still have a shot at employment opportunities. It is a nod to the principle of redemption. 

Most people will argue that rehabilitation of offenders is a very low priority of our criminal justice system. Perhaps that is because, as a society we are not quick to forgive someone their past indiscretions. There are many “victimless” crimes which remain on our statutes. Perhaps a good place to start is to examine whether or not those are still needed.  

Employers can maintain their prerogative to set reasonable job requirements based on the role, reputational risk, and market demands. However, it is equally true that where the potential candidate has disclosed their previous criminal background and has received an offer of employment despite this, that their possession then of a criminal record should not thereafter be the basis upon which their employment offer is rescinded. 

Beacon of guidance to job seekers  

To the contrary, it is important to remember that this case emphasizes that individuals with criminal records, who have reformed, still have opportunities in the job market however employers reserve the right to hire based on the reasonable and inherent requirements of the job. It also serves as a reminder to those with previous criminal convictions to apply for the expungement of their record and to consider applying for more and different positions instead of giving up and returning to a life of crime. They can and should apply to any jobs as long as they do not relate to their previous convictions, or that their previous convictions will not affect the scope of how they choose to carry out their work.  

Essentially, it’s about finding a balance between giving individuals a chance to rebuild their lives and ensuring that employers can make informed decisions that align with the requirements of their respective roles. This case serves as a beacon of guidance for both job seekers and employers navigating the complex process of hiring practices and reintegrating past offenders into the work environment.