Criminal records and employment. Can your crimes be held against you?

A criminal record can significantly affect individuals seeking employment or those already employed. However, South African labour law balances employers’ legitimate interests with protections against unfair discrimination. A criminal record will not justify declining a job applicant or dismissing an employee unless it can be clearly shown that such criminal record impacts directly on the employment relationship.

South African labour law does not support an outright ban on employing individuals with criminal records. Instead, the Labour Relations Act (LRA) and the Employment Equity Act (EEA) prohibit unfair discrimination based on irrelevant criminal history. The Protection of Personal Information Act (POPIA) further regulates how employers may collect and process criminal record information.

• The LRA prohibits unfair discrimination based on various grounds including criminal record, except when the record is directly relevant to the inherent requirements of the job as set out in section 187(2) of the Act.
• Section 6 of the EEA requires objective justification that a criminal record impacts the applicant’s or employee’s ability to perform the particular role.
• POPIA mandates employers to obtain written consent before conducting criminal background checks and to handle such information securely.

Disqualification of Job Applicants Due to Criminal Record

Employers may lawfully refuse employment if a criminal record affects an applicant’s suitability for the job. For example, applicants convicted of theft may be unsuitable for positions involving money handling. However, this must be evaluated carefully:

• The criminal record must relate directly to the inherent requirements of the job.
• Blanket exclusions based solely on any criminal history are unfair discrimination.
• Retraction of an employment offer solely on the basis of a remote or irrelevant criminal record can constitute unfair discrimination if not properly justified.

In O’Connor v LexisNexis (Pty) Ltd [2024] ZALCPE 11, a conditional offer of employment was retracted after the employer discovered that the applicant had a criminal record for theft arising from an incident which took place 20 years prior. In making its decision, the court referenced the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices, which states that ‘An employer should only conduct integrity checks, such as verifying the qualifications of an applicant, contacting credit references and investigating whether the applicant has a criminal record, if this is relevant to the requirements of the job’. This would indicate that an exclusion on the grounds of a criminal conviction which was irrelevant to the requirements of the job would be arbitrary because the decision would be without rational justification.

The Court found that while the applicant’s convictions might be relevant to positions that require trust and honesty, there was no indication that the position of Senior Data Discovery and Enrichment Expert was such a position, especially given the applicant’s rehabilitation. The applicant was to work from home, a great distance away from the respondent’s offices, using his own resources, and it was a stretch to imagine that the applicant would sit at home and maliciously miscategorise legal information for his own benefit. The Court therefore found that the applicant’s criminal history was not relevant to the job which the respondent had denied him, and that the said denial constituted unfair discrimination.

Non-disclosure of a relevant criminal record by applicants may also justify dismissal if it undermines the employment trust relationship. In G4S Secure Solutions SA (Pty) Ltd v Commissioner Anthony Ruggiero & others (LAC) 2015 a security guard had been employed in 1996, at which time he was asked in a written application form whether he had ever been convicted of a criminal offence. His answer was no, and he was subsequently employed.

Fourteen years later the employee applied for an internal promotion, and on conducting criminal checks, it was found that he had two previous convictions for rape and assault with intent to do grievous bodily harm, committed when he was 17. He was called to a disciplinary hearing for dishonesty concerning his application for employment, found guilty, and dismissed. The LAC found that “The employment relationship by its nature obliges an employee to act honestly, in good faith, and to protect the interests of the employer.  The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely”. The court further ruled that a conviction of rape and assault is antithetical to employment in the position of a security guard given the nature of that position. In spite of the employee’s long service, dismissal was found fair under the circumstances.

Disciplinary and Incapacity Action Against Existing Employees     

An employee’s criminal conviction may warrant disciplinary action where a direct connection exists between the offence and their employment duties. For instance, crimes involving dishonesty or fraud may justify dismissal in positions requiring trust.

• The employer is entitled to initiate disciplinary proceedings independently of any criminal trial.
• Failure to disclose relevant criminal conduct can be misconduct.
• Where imprisonment or incapacity arises from a criminal conviction, dismissal may be substantively fair albeit requiring procedural fairness.

In Molehe v Public Health and Social Development Sectoral Bargaining Council (2019), Mr Molehe was dismissed while imprisoned following a bribery and corruption conviction. The Labour Court confirmed that incapacity, including imprisonment, can be a valid ground for dismissal if the employee cannot perform their duties, but procedural fairness remains critical. Although the substantive dismissal was deemed fair, the absence of appropriate procedural steps rendered it procedurally unfair. The case illustrates managing incapacity linked to criminal convictions and balancing operational needs with fairness.

Employers must ensure fair procedures including giving the employee an opportunity to be heard, even if the employee is incarcerated.

Balancing Fair Treatment and Employer Interests   

South African labour law requires employers to balance business interests, workplace safety, and fairness to the employee or applicant. Imposing blanket bans or ignoring the relevance and context of a criminal record can lead to successful claims for unfair discrimination or unfair dismissal.

A criminal record impacts employment decisions in South Africa within a framework that emphasises relevance, fairness, and procedural compliance. Labour law and HR practitioners must carefully assess the nature of the offence, its connection to the job, and follow fair disciplinary or hiring procedures.

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