What to do when an employee is dishonest about their previous criminal history

When an employee intentionally deceives their employer by lying about or concealing their past criminal record, the repercussions can be far-reaching and detrimental to both the employee and the employer.

Employers rely on the information provided by prospective employees to make informed decisions about who to employ. When a candidate fabricates or conceals details about their criminal history, it undermines the employer’s ability to assess the risks associated with the individual accurately.

The Role of Background Checks in Employment Decisions

Many employment applications explicitly ask about criminal history, and providing false information can lead to dismissal if discovered later. Specific industries and positions demand a high level of honesty and integrity due to the nature of the work that the employer does.

Furthermore, some employers have legal obligations to ensure that they hire people who do not have criminal records. Such employers could face serious risks should they hire someone with a criminal record.

To prevent a situation where a company discovers that someone has been dishonest about their past, employers must adopt a proactive approach. Employers must conduct background checks and verify any qualifications prospective employees provide to ensure they are legitimate. Employers should ensure that it is clear that even if an offer has been made to a prospective employee, it is dependent on receiving any necessary verifications and criminal checks.

Criminal History Disclosure in Interviews

Interviewers should address questions related to an employee’s criminal history, and the employee should specifically disclose any information that may be relevant to the employer making a decision to hire.

Company policies should be clear that should the company establish that the employee was dishonest in relation to any questions asked during the interview, such could lead to the employee’s dismissal. Policies should also be clear if there is a positive duty on employees to disclose a criminal record that they may acquire after beginning employment.

Balancing Criminal Record Checks with Non-Discrimination Obligations

The Employment Equity Act 55 of 1998 prohibits unfair discrimination against an employee or job applicant in any employment policy or practice on the grounds of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, political opinion, culture, language, birth or on any other arbitrary ground.

Thus, employers must ensure that they do not discriminate directly or indirectly against prospective employees. However, employers have the right to conduct criminal checks before hiring someone. While in some professions, an employee can have no criminal record, there may be times when a criminal record does not impact the employment relationship.

As such, it could be deemed unfair to exclude someone from employment on that basis. For example, it may be unfair to refuse to employ a receptionist who has a criminal record for driving under the influence of alcohol. It thus can be decided on a case-by-case basis whether the prospective employee’s criminal record is relevant to that specific role.

Legal Precedent

In the case of Ngobo v Department of Correctional Services and Others (D 1184/17) [2021] ZALCD 11, a prospective employee was required to disclose previous convictions on the enrolment form. The company had made it abundantly clear that failure to disclose any form of criminal record could lead to dismissal.

The court found that the employee’s actions by not disclosing a criminal record were dishonest, and thus, dismissal in these circumstances was appropriate.

In the case of G4S Secure Solutions (SA) (Pty) Ltd v Ruggerio N.O and Others (2017), 38 ILJ 881 (LAC), the court found that the dishonesty and failure to disclose criminal convictions by the employee misled the employer and had directly led to him being employed with the company. It is thus imperative to ensure that the necessary checks are done before employing someone.

If, however, it only comes to light at a later stage that someone has concealed their criminal record, it may well constitute a valid ground for their dismissal.

Please do not hesitate to contact us if you are unsure how to manage employees who conceal their criminal history.