Managed Integrity Evaluation (MIE) conducted 741 560 criminal record checks of which 10% were found to have criminal records. 48,167 of these candidates did not disclose that they had a criminal history upfront. Could you be in a similar situation with your prospective employee?
The next question would be whether I am allowed to ask my potential employee during the interview whether or not they have a criminal record. The rule of thumb in such a situation is that if the question is job related, it should be appropriate to be asked and answered.
What are my rights as an employer to information?
The employer has a right to information relevant to making the decision to employ an applicant, however, Section 6 of the Employment Equity Act prohibits discrimination against job applicants on numerous arbitrary grounds, which includes race, gender, pregnancy and age. The effect of this is that the employers must be mindful of the questions. Questions, even asked in innocence, could create the perception of discrimination. If exercised, discriminatory questions asked during an interview may be reported to the CCMA and the employer may be held liable for damages.
As an employer, what may I not ask during an interview?
Any information listed in Section 6 of the Employment Equity Act as a prohibited ground may be withheld. For example, an employer may not ask an applicant questions relating to their:
- HIV status (unless this question is medically relevant),
- marital status,
- sexual preference,
- religious practices,
- or whether a woman is pregnant.
A prospective employer may enquire as to any criminal records. However, it would be unfair to consider past criminal records for minor offences which have no bearing on the requirements associated with the position.
Phrasing the question right…
The manner of phrasing the question could provide you with the answer you are looking for. The question of having a criminal record is generally considered to be discriminatory. Yet, in certain industries such as banking and financial services, this question is relevant. Only under employment situations where fraud and embezzlement may exist would such a question apply. The question should rather be posed as “Have you ever been arrested for financial fraud or embezzlement?”
Ensuring that your interview is in line with the Employment Equity Act and does not constitute discrimination, is imperative in ensuring that there is no unnecessary litigation pursued by an unsuccessful candidate.
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LWO Regsadviseur - LWO Legal Advisor
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