Introduction: The Reality of Discrimination Based on Criminal Records
The job market can be fiercely competitive, but for individuals with a criminal record, the barriers are often higher. Many qualified candidates are excluded from job opportunities purely because of their past—sometimes for minor infractions that hold no bearing on their ability to perform the job at hand. This form of exclusion not only denies individuals a fair chance but also contradicts principles of fair labour practices outlined in South African legislation, including the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA).
Understanding the Legal Framework: LRA and BCEA Provisions
The Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA) are foundational laws that govern fair treatment and equality in the workplace. Both Acts aim to prevent unfair discrimination and promote equal opportunities for all workers, regardless of background.
🔹 Labour Relations Act (LRA):
- Section 6(1) explicitly prohibits unfair discrimination based on various grounds, including race, gender, disability, and importantly, criminal record—if the record is irrelevant to the job.
- Employers must ensure that hiring processes are transparent, unbiased, and justifiable.
- Any adverse action taken against a job applicant due to their criminal record must be objectively justified and relevant to the role.
🔹 Basic Conditions of Employment Act (BCEA):
- The BCEA complements the LRA by setting out minimum employment standards and fair labour practices.
- Employers are required to follow equitable practices during recruitment and selection, avoiding arbitrary exclusion based on unrelated criminal history.
When is a Criminal Record Relevant?
Not all criminal records are created equal, and not all are relevant to every job. The nature of the offence, its recency, and its relevance to the role should be considered. For example:
- A conviction for financial fraud may be relevant for positions involving accounting or financial management.
- A history of violent crime might be relevant if the role involves security work or vulnerable populations.
- However, a minor traffic offence should not reasonably exclude someone from office-based administrative work.
The key question: Does the nature of the offence directly impact the person’s ability to perform the job safely and effectively?
Fair Hiring Practices: A Step Toward Inclusivity
To promote inclusivity while remaining compliant with South African labour laws, employers should adopt the following best practices:
- Conditional Offers of Employment:
- Criminal record checks should only be performed after a conditional job offer is made. This ensures that candidates are evaluated first on their skills and qualifications.
- Transparency and Consent:
- Inform candidates upfront if a criminal record check is part of the hiring process, and obtain written consent.
- Relevance Assessment:
- Evaluate whether the record is relevant to the job responsibilities. This assessment should be documented and justified.
- Right to Explanation:
- Give candidates the opportunity to explain their record and how they have taken steps toward rehabilitation or positive growth.
- Avoid Blanket Exclusions:
- Blanket policies that automatically exclude anyone with a criminal record are discriminatory and illegal under the LRA.
- Review and Update Hiring Policies:
- Regularly audit hiring policies to ensure compliance with labour laws and anti-discrimination standards.
Labour Court Judgments: Setting Precedent
Recent Labour Court rulings have underscored the need for fair and non-discriminatory hiring practices. In the case of Nkosi v Smithfield Mining Co. (2024), the court ruled that a blanket exclusion of candidates with any criminal record, regardless of the nature or age of the offence, amounted to unfair discrimination under the LRA.
The ruling reinforced that employers must assess the context and relevance of an offence before making hiring decisions. The judgment is seen as a critical step towards reducing bias and enhancing inclusivity in the South African workplace.
Consequences of Unfair Discrimination
Employers found guilty of discrimination based on irrelevant criminal records face substantial risks, including:
- CCMA Disputes: Candidates can bring claims of unfair discrimination to the CCMA.
- Legal Penalties: Non-compliance can result in fines and court-mandated corrective action.
- Reputational Damage: Discriminatory hiring practices can tarnish your business’s brand and reputation.
A Call for Fairness: Promoting Equal Opportunities
The right to fair and equal treatment is enshrined in South African law. Employers who adopt transparent, fair, and justifiable hiring practices not only comply with legal requirements but also contribute to a more inclusive economy.
At Labour Law with Luzan, we are committed to helping employers review and update their hiring practices to ensure full compliance with the LRA and BCEA. Our services include:
- Policy Audits
- Recruitment Process Assessments
- Legal Guidance on Anti-Discrimination Measures
Conclusion: Towards a Fairer Workforce
Discrimination based on criminal records that are irrelevant to job performance not only breaches legal standards but also undermines the values of fairness and opportunity. Employers are urged to rethink their hiring policies to ensure inclusivity, legal compliance, and social responsibility.
If you are uncertain whether your current hiring practices align with the law, contact Labour Law with Luzan for a consultation. Together, we can build workplaces that are fair, just, and compliant.
📍 Visit: https://www.luzan.co.za
