A recently settled case in the Labour Court demonstrated that excluding a job applicant because of their criminal record is only lawful when the requirements of that job explicitly outline and justify the need for a clean criminal record.
Acknowledging his past theft conviction from 2001 had been expunged, O’Connor was initially offered a job by LexisNexis based on the outcome of a background check. He alleged that LexisNexis unfairly discriminated against him based on his past criminal convictions, basing the argument on a section of the Employment Equity Act that prohibits “unfair discrimination” in any employment policy or practice.In considering whether O’Connor had been unfairly discriminated against, the court assessed whether the differentiation based on a criminal record was ” arbitrary.
Additionally, the court had to ascertain whether discrimination was justifiable on the basis that it was an inherent requirement of the job for O’Connor to have a clean criminal record. However, the legal experts said that “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.”
Source: Law Daily Report (lawdailyreport.net)
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