In today’s competitive job market, a criminal record is often viewed as a significant hurdle to securing employment. However, a landmark 2024 legal ruling has fundamentally shifted the power back to job seekers, confirming that your past mistakes do not give employers a blank cheque to discriminate against you, especially if your record has been expunged.
The Landmark Case: O’Connor v LexisNexis (2024)
The Labour Court case of O’Connor v LexisNexis (Pty) Ltd (2024) is a vital piece of legal protection for every South African with a criminal history. In this matter, LexisNexis offered Mr O'Connor a position as a "Senior Data Discovery and Enrichment Expert." However, after a background check revealed 20-year-old convictions for theft and fraud—which had already been legally expunged—the company retracted the job offer.
The court's decision was clear: denying a person a job solely based on an expunged criminal record constitutes unfair discrimination.
Criminal Records as "Arbitrary Grounds" for Discrimination
While the Employment Equity Act (EEA) lists specific grounds for discrimination like race or gender, the sources explain that the court now recognises a criminal record as an "arbitrary ground" for unfair treatment. This is defined as an inherent attribute intimately connected to how a person is perceived by society.
The court established that if a criminal history is irrelevant to the requirements of the job, using it as a reason for rejection is without rational justification. In Mr O'Connor's case, because he was to work from home via the internet using his own resources, his two-decade-old record had no bearing on his ability to perform the role.
The "Relevance" Test: When Can an Employer Say No?
According to the Code of Good Practice, employers should only conduct integrity checks if they are directly relevant to the requirements of the job. To determine if a rejection is "rationally justified," one must ask: Does this record materially affect the person’s ability to do this specific job?
• Justified:
A financial manager with a record for fraud, or a teacher with a record for sexual offences.
• Unfair Discrimination:
An office worker or technician being denied a role based on an old, irrelevant conviction for a minor offence like petty theft.The Legal Power of ExpungementExpungement is more than just "hiding" a file; it is a legal process that permanently removes a conviction from the SAPS Criminal Record Centre database. The sources provide three critical protections for those who have cleared their records:
1. Legal Reset:
For all practical purposes, the offence is handled as if it never happened.
2. No Obligation to Disclose:
Once a record is expunged, you are generally not obligated to disclose it to a prospective employer.
3. Invisible Background Checks: An expunged record should not appear in any background check conducted by an employer.
Reclaim Your Future with Expert Legal Assistance
Navigating the complexities of the Criminal Procedure Act and employment law requires professional expertise. As the sources note, seeking legal guidance can streamline the process and ensure that your application for a "clean slate" is successful.At Criminal Record Expungement Services (Pty) Ltd (CRES), we are owned and managed by a practising attorney with over 25 years of experience. We don't just help you clear your name; we help you understand your rights so you can walk into your next interview with the confidence of a clean slate.
