South African small and medium-sized enterprises (SMEs) are facing a potential shift in how they handle criminal background checks for potential hires. A recent labor court case, O’Connor versus LexisNexis, sets a precedent that could impact your hiring practices.

The Case: Balancing Fairness and Trust

The case involved an applicant, Mr. O’Connor, who applied for a remote work position at LexisNexis. He disclosed having a criminal record for theft during the initial interview but downplayed its severity. LexisNexis offered him the job subject to a background check, which revealed a more extensive criminal history involving theft, fraud, and obstruction of justice. LexisNexis then withdrew the job offer, citing a lack of trust due to the undisclosed details.

The court ruled in favor of Mr. O’Connor, stating that LexisNexis discriminated against him. The court argued that a clean criminal record wasn’t an “inherent requirement” for the remote work position.

What This Means for SMEs

This case raises crucial questions for South African SMEs:

• Can You Exclude Applicants Based on Criminal Records? Yes, but with limitations. You can only exclude applicants if a clean record is truly essential for the job. For example, a financial services company might have a legitimate reason to exclude someone with a fraud conviction from a cashier position. However, for many roles, a criminal record might not be directly relevant.
• How Do You Assess Criminal Records Fairly? Focus on the specific details of the offense and its relevance to the job duties. A theft conviction 20 years ago for shoplifting might not disqualify someone for a customer service role.
• Transparency is Key. Be clear about your background check policy during the application process. This avoids surprises for both you and the applicant.

Moving Forward

The O’Connor case is likely to be appealed, potentially leading to a clearer legal framework. In the meantime, SMEs should adopt a cautious approach:

• Conduct a Risk Assessment. Identify positions where a criminal record could pose a genuine risk.
• Develop a Clear Policy. Outline your background check process and how criminal records will be evaluated.
• Focus on Rehabilitation. Consider candidates who have demonstrated rehabilitation efforts after their offense.

By following these steps, South African SMEs can navigate this legal shift while making fair and informed hiring decisions. Remember, qualified individuals with criminal records can be valuable assets to your business.

Bizcash is a company that has funded over R1 billion in SME investments in South African businesses.

Get in touch with us at 0861 93 93 93 or email us at info@bizcash.co.za or contact us here, so we can help you with your cashflow challenges. 

For more business tips, follow our social media pages.