Employees and criminal history

Employees and criminal history

Business, Human Resources

Can an employer reject a prospective employee because he/she has a criminal record?

Can you dismiss a current employee for having a criminal record?

The Employment Equity Act states that no employer may unfairly discriminate against an employee (which includes applicants) on grounds such as race; gender; sexual orientation and disabilities

The Act goes on to say however that it is not unfair to distinguish, exclude or prefer any person based on an inherent requirement of a job. When recruiting we can therefore ask applicants to disclose information to allow us to determine their suitability for the position they are applying for, this may include requesting previous criminal records.

Some key aspects to consider if you are going to exclude the person

  1. How long ago did the transgression occur?
  2. What is the record for?
  3. Does having this record in any way affect the person’s ability to do their job (i.e. the inherent requirements of the job)


Bob, 48 years of age, is a qualified school bus driver but has a criminal record for drunk driving when he was 18 years of age. This criminal record does not mean that Bob is a raging alcoholic or drinks whilst on duty and endangers the lives of children. It could be that he went out as an 18-year school leaver and got caught drinking and driving. His employment references and record of the past 25 years are impeccable and there is no evidence that this is an ongoing issue.

Without asking the correct questions you are unable to make a fair and rational judgment and if you reject his application or terminate his employment you could end up in CCMA for unfair discrimination.

NOTE: Compensation under the LRA is limited to 12 months’ remuneration in the case of ‘ordinary’ dismissals, and 24 months’ remuneration in the case of discriminatory dismissals (this includes prospective employees). The Employment Equity Act permits the payment of compensation, as well as damages. Damages may be awarded in respect of patrimonial losses suffered and proved. Compensation is monetary relief for the affront of human dignity arising from the unfair discrimination suffered by the complainant. The amount of compensation that may be awarded in terms of the EEA is not limited and must be just and equitable.

This is not to say that there are times in which a criminal record could be grounds for dismissal, but the correct HR procedures must be followed before any action is taken.

For assistance with any pre-employment checks and/or guidance on the correct procedures to follow feel free to contact [email protected] .