South Africa: Decision on discrimination in personnel selection

On 11 April 2024, the Port Elizabeth Labour Court addressed critical employment discrimination issues based on criminal history, emphasising the boundaries of fair employment practices under the Employment Equity Act (EEA).
The ruling states that employers cannot deny employment based solely on criminal records unless the records are directly pertinent to the job.

The case concerns an applicant who received a job offer, which was later retracted after a criminal background check revealed past convictions. Despite his criminal record being deleted, the company deemed it a reason to deny employment.

The Court found LexisNexis's decision to withdraw the job offer constituted unfair discrimination under section 6 of the EEA, considering the criminal history deemed irrelevant to the job's inherent requirements.

The Court emphasised that for criminal history to be a legitimate basis for denying employment, it must be directly relevant to the job's inherent requirements. In O'Connor's case, the Senior Data Discovery and Enrichment Expert role did not necessitate a clear criminal record, especially since the job was remote and involved categorizing legal information.

Moreover, the ruling reinforces protections under the EEA against arbitrary discrimination and underscores the importance of equitable treatment in employment.