Hiring new employees is still one of the riskiest decisions an employer makes. You’re trying to protect your business, manage compliance and find the right person – all under time pressure. That’s exactly why it’s so tempting to lean heavily on important tools such as background checks, especially criminal and credit records.
But the recent Labour Court judgment in O’Connor v LexisNexis (Pty) Ltd is a timely reminder: if you use those checks in a way that is not linked to the inherent requirements of the job, you may be crossing the line into unfair discrimination under the Employment Equity Act (EEA).
This piece pulls together:
An employment relationship effectively begins once an offer has been made and accepted – not only when the new employee physically starts work. Employers should therefore avoid making offers before they have properly completed interviews and considered all candidates.
The O’Connor case is a good example of how things can go wrong once you’ve moved too far down the road:
The Labour Court ultimately found that denying the job solely on the basis of criminal history – in circumstances where that history was not relevant to the work to be performed by the employee– amounted to unfair discrimination under section 6 of the EEA.
Before you get anywhere near an offer, your interview process should systematically gather the information you actually need to assess both suitability and risk. Sensible, lawful questions include:
These questions are aimed at legitimate operational and legal risks, not at excluding candidates on arbitrary grounds.
The EEA and its Code of Good Practice on Human Resource Policies and Practices are clear: integrity checks – such as criminal, credit or qualification checks – should only be conducted if they are relevant to the requirements of the job.
The Code goes further: employers may not collect personal data about criminal convictions except in exceptional circumstances where this information is directly relevant to an employment decision.
In O’Connor, the court accepted that the applicant had old, expunged convictions for theft, fraud and defeating the course of justice, but emphasised that:
The Labour Court therefore held that the criminal history was not relevant to the job for which the candidate had applied and that refusing to employ the candidate on this basis alone constituted unfair discrimination.
For employers, the practical lesson is this:
Once you’ve gathered the right information and identified your preferred candidate, pause before issuing an offer. Use a basic checklist to ensure you have thought through:
If you do make a conditional offer (for example, “subject to clear criminal checks and positive references”), make sure:
Hiring in 2026 (and in general) requires a balance between protecting your business and respecting the dignity and rights of job applicants. A structured process – asking the right questions, documenting your reasoning, and ensuring that checks are genuinely linked to the job – places you on much firmer legal ground, and reduces the risk of costly litigation like in O’Connor v LexisNexis.
If you’re unsure whether your recruitment policies, interview questions or background checks strike the right balance, it is worth having them reviewed before you make your next round of appointments.
Hiring new employees is still one of the riskiest decisions an employer makes. You’re trying to protect your business, manage compliance and find the right person – all under time pressure. That’s exactly why it’s so tempting to lean heavily on important tools such as background checks, especially criminal and credit records.
But the recent Labour Court judgment in O’Connor v LexisNexis (Pty) Ltd is a timely reminder: if you use those checks in a way that is not linked to the inherent requirements of the job, you may be crossing the line into unfair discrimination under the Employment Equity Act (EEA).
This piece pulls together:
An employment relationship effectively begins once an offer has been made and accepted – not only when the new employee physically starts work. Employers should therefore avoid making offers before they have properly completed interviews and considered all candidates.
The O’Connor case is a good example of how things can go wrong once you’ve moved too far down the road:
The Labour Court ultimately found that denying the job solely on the basis of criminal history – in circumstances where that history was not relevant to the work to be performed by the employee– amounted to unfair discrimination under section 6 of the EEA.
Before you get anywhere near an offer, your interview process should systematically gather the information you actually need to assess both suitability and risk. Sensible, lawful questions include:
These questions are aimed at legitimate operational and legal risks, not at excluding candidates on arbitrary grounds.
The EEA and its Code of Good Practice on Human Resource Policies and Practices are clear: integrity checks – such as criminal, credit or qualification checks – should only be conducted if they are relevant to the requirements of the job.
The Code goes further: employers may not collect personal data about criminal convictions except in exceptional circumstances where this information is directly relevant to an employment decision.
In O’Connor, the court accepted that the applicant had old, expunged convictions for theft, fraud and defeating the course of justice, but emphasised that:
The Labour Court therefore held that the criminal history was not relevant to the job for which the candidate had applied and that refusing to employ the candidate on this basis alone constituted unfair discrimination.
For employers, the practical lesson is this:
Once you’ve gathered the right information and identified your preferred candidate, pause before issuing an offer. Use a basic checklist to ensure you have thought through:
If you do make a conditional offer (for example, “subject to clear criminal checks and positive references”), make sure:
Hiring in 2026 (and in general) requires a balance between protecting your business and respecting the dignity and rights of job applicants. A structured process – asking the right questions, documenting your reasoning, and ensuring that checks are genuinely linked to the job – places you on much firmer legal ground, and reduces the risk of costly litigation like in O’Connor v LexisNexis.
If you’re unsure whether your recruitment policies, interview questions or background checks strike the right balance, it is worth having them reviewed before you make your next round of appointments.
