This is a topic that perplexes both employers and employees alike. Questions such as: “What…
The legalities surrounding pre-employment screening
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The legalities surrounding pre-employment screening
First things first, and it is important we put this on the table – without consent, you cannot do much. Applicant consent is legally mandatory and without it, you would be exposing yourself and the organisation to legal risk.
Next, have a policy in place that creates the framework for pre-employment screening to be done. The policy should include details of what screening and verifications are allowed as well as who will be subject to the screening process i.e. will it be only new applicants or current employees?
Now that the policy is in place you need to define your pre-employment screening objectives. Are you looking to uncover criminal records or charges? Is verifying academic qualifications important to you? Are your employees exposed to the handling of cash/finances and therefore verification of qualifications and professional memberships become a priority?
Now, before going through the pre-employment screening process consider the following salient questions:
- To what extent will a criminal record or history of criminal charges affect the chances of the applicant gaining employment at your organisation?
- How would a criminal history affect the working relationships of the applicant with the current workforce?
- What is the nature of the criminal record/ history?
In South Africa the Employment Equity Act of No. 55 of 1998, chapter 2, section 6 reads as follows;
No person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice, on one or more arbitrary ground – race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.
Basically, this means that if someone has a previous conviction or history of criminal activity the company may take it into account and base their decision not to hire him/ her on those grounds. That being said, the act is clear that you may not discriminate on “any other arbitrary grounds” and a conviction may just satisfy an arbitrary ground if the conviction would have no bearing on the person’s role, responsibilities or relationships with fellow employees and/or customers.
To illustrate this let’s consider the following case; a 35-year-old applicant has a conviction for driving under the influence in 1999 whilst he was a university student. According to him he paid a “fine” and that was the end of it, or so he thought. What he believed to be a fine was, in fact, an acknowledgement of guilt which carries with it a punitive fine as well as an admission of guilt which translates to a conviction of driving under the influence. The applicant is being considered for the position of call centre manager and as such, there is no emphasis on his ability to operate a motor vehicle or transport any product, customer or staff member during the normal activities of his job.
In this case the potential exists that in the event that his application is unsuccessful (based on the fact that he has a criminal record), a claim or appeal may be lodged against the company for discrimination.
In another case, an applicant applies for the position of company secretary and is subject to the pre-employment screening process. Through this screening process it is discovered that he has been arrested and charged 7 times in the last 10 years for theft, corruption and fraud. He has never been convicted and the cases have been withdrawn (reasons unknown). Are you, as a company or employer allowed to use that history against him? The answer is yes. Why? Well simply put, the applicant is applying for a position which is considered a position of trust. He will have access to company and account information, personal information of directors and employees within the company and holds a position of power within the organisation. His criminal history in the form of several arrests and charges indicate the there is a potential problem with this person behaviour. There is a clear behavioural pattern and by ignoring it you run the risk of exposing both the company and everyone else associated with the company to the potential of criminality.
In this case, as described above you would be perfectly within your rights (and duties for that matter) of rejecting his application.
As you can see from the above, there is no clear-cut answer as to whether a criminal record or past should preclude an applicant. We at Intellivett are of the opinion that every case needs to be considered based on its particular merits and associated paradigms. We as employers need to apply our mind and determine our appetite for risk in this regard.
