The implication of retracting an offer of employment based on prior criminal convictions

Unfair discrimination has a storied history in South African employment law. Since the dawn of South Africa’s democracy, our legislature has actively clamped down on it through various acts, codes, rules, and regulations. 

Arguably, one of the most important mechanisms is the Employment Equity Act 55 of 1998, which aims to promote equal opportunity and fair treatment in employment by eliminating unfair discrimination. In contrast, employers commonly reserve the right to protect their interests and ensure sustainability by employing the correct type of employees. 

This issue was pivotal in the case of Connor v LexisNexis (Pty) Ltd (P18/24) [2024] ZALCPE 11 (11 April 2024).

Background facts of the case

At the beginning of 2024, LexisNexis offered Mr Elsworth O’Connor a job as a Senior Data Discovery and Enrichment Expert I, which entailed organising and classifying the information published in LexisNexis’ legal products. During the application phase, on 20 January 2024, a representative of the respondent emailed O’Connor and said that his interview was positive and that O’Connor would be moving on in the application process.

The representative asked that O’Connor fill in their “RefCheck Consent and Indemnity Form”, which included a section on his criminal background. O’Connor completed the form and responded “yes” when asked whether he had ever been criminally charged. When asked for further details, O’Connor replied that he had been indicted for theft in 2001 but that this record had been expunged.

Upon completing his application and the RefCheck Consent and Indemnity Form, O’Connor was asked to provide his fingerprints at a local PostNet office to conduct a criminal background investigation. On January 29th, 2024, the representative on behalf of LexisNexis emailed O’Connor the job offer, which he accepted on the same day. 

On January 30, 2024, O’Connor was emailed his contract of employment, which he duly signed and sent back to the representative. However, on February 6, 2024, the employer retracted the “conditional offer” of employment because O’Connor’s criminal check revealed six counts of theft, one count of fraud, and two counts of defeating the course of justice.

After failed attempts at solving the matter in the CCMA, O’Connor brought an urgent application to the Labour Court, requesting that LexisNexis be ordered to honour its original offer. Arguably, the most critical part of O’Connor’s case revolved around his assertion that LexisNexis, through their retraction of the offer of employment, had unfairly discriminated against him on the arbitrary ground of past criminal convictions within the meaning of section 6 of the Employment Equity Act.

The legal framework

Section 6 of the Employment Equity Act deals with the prohibition of unfair discrimination. Section 6(1) states that No person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth. 

Though this is a substantial list of grounds for unfair discrimination, this list is incomplete. In support of this section of the Act, Paragraph 7.3.32 of the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices states that an employer should only conduct integrity checks, such as verifying the qualifications of an applicant, contacting credit references, and investigating whether the application has a criminal record, if this is relevant to the requirements of the job. 

Paragraph 17.3.6 of this Code states that an employer may not collect personal data regarding an employee’s sex life, political, religious, or other beliefs or criminal convictions, except in exceptional circumstances where such information may be directly relevant to an employment decision.

Acting Judge Meyerowitz’s application of the legal framework to the matter 

After considering the legal framework relevant to the matter, Acting Judge Meyerowitz, in his obiter dicta, concluded that these legislative provisions suggest that the exclusion of an applicant from employment based on a criminal past would constitute unfair discrimination, even if this criminal past is irrelevant to the job requirements. This exclusion would be arbitrary because the decision would be without rational justification. 

Meyerowitz explained that O’Connor’s criminal history had become an inherent attribute that is intimately connected to the societal perception of him. Still, our criminal justice system is premised on the idea that a person must be allowed back into society once they have paid their proverbial dues and debt to society. 

Furthermore, Meyerowitz explained that the denial of a person’s right to participate in society freely would also constitute a denial of their Constitutional rights as a person. Based on this application, Meyerowitz concluded that there was little to no evidence that O’Connor’s prior convictions would in any way, shape, or form preclude him from fulfilling a role as a Senior Data Discovery and Enrichment Expert I, save for an unfathomable situation where he might “maliciously miscategorise legal information for his benefit”. 

LexisNexis was subsequently ordered to employ O’Connor on the terms and conditions set out in the employment contract offered to him.

Impact of the Judgment 

In the context of employment practices, this judgment stresses the importance of determining which factors, attributes, skills, or experience are deemed necessary and inherent job requirements. If, for example, one’s criminal past has no bearing on one’s ability to organise information on a computer, then employers would be well versed in not denying an applicant a job due to their perceptions of him.

If you need further advice on employment policies, then please feel free to contact our legal team.