The Labour Court has delivered a judgment in a case involving a claim of alleged arbitrary discrimination based on criminal record.
The facts were as follows:
- Mr Elsworth applied for a job with LexisNexis.
- During the job application process, he disclosed that he had a criminal conviction from 2001 which had been expunged.
- LexisNexis made an offer of employment to Mr Elsworth, and he accepted the offer.
- LexisNexis later emailed him stating that it was “retracting” the “conditional offer” of employment because the criminal check had revealed six counts of theft, one count of fraud, and two counts of defeating the course of justice.
As a result, Mr Elsworth launched an urgent application in the Labour Court to order LexisNexis to honour its offer.
Mr Elsworth alleged that he had been unfairly discriminated against based on an arbitrary ground.
The Labour Court accepted that a criminal conviction is an inherent attribute that is intimately connected to how he is perceived by society, and thus that it constituted an arbitrary ground of discrimination.
The court held as follows:
“Our criminal justice system is premised on the idea that once the criminal has paid their debt to society, that person must be allowed back into society. To deny that person their right to freely participate in society with dignity, is to deny them their Constitutional rights as a person.”
The court proceeded to consider whether a clear criminal check was an inherent requirement of the job of Senior Data Discovery and Enrichment Expert.
On the facts, Mr Elsworth would conduct his work from his home in Komani, whereas LexisNexis’ main offices are in Durban. Mr Elsworth would do his job over the internet using his own resources. The court therefore found as follows:
“It stretches credulity to imagine that the applicant will sit at home and maliciously miscategorise legal information for his own benefit.”
The court concluded that Mr Elsworth’s criminal history was not relevant to the job and that it was not an inherent requirement of the job for him not to have a historical criminal conviction. It thus accepted, on the facts of the case, that Mr Elsworth had established arbitrary discrimination based on criminal record.
LexisNexis was ordered to employ Mr Elsworth within 10 days of the court’s order.
Read a copy of the judgment here:
1713243736397
