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Dispelling the myths around criminal record checking job applicants

The 2010 Annual Screening statistics released by EMPS, SA’s oldest screening and vetting company, raised a lot of debate regarding whether or not companies should be checking the criminal records of job applicants prior to employment and whether this is in fact fair practice.

The concern relates to when a company can deny employment as the result of an applicant having a criminal record. In light of the fact that over 13% of all applicants checked by EMPS in 2010 had a criminal record, with 25% of those convictions being for theft and 33% repeat offenders, it goes without saying that companies should in fact be conducting criminal checks on all job applicants. How companies deal with applicants who do have a criminal record, is more the question.

The first problem arises from the fact that the majority of applicants with a criminal conviction are not honest and upfront with potential employers and recruitment agencies, stating on their CVs, in application forms and in face-to-face interviews that they have a clear criminal record. This is the first mistake, as this gives potential employer/recruitment agency ammunition to decline the position based purely on misrepresentation and nothing to do at all with the actual criminal record itself. So, as far job applicants with criminal convictions are concerned, full disclosure upfront is the best option.

Then, having a criminal conviction is not a reason in itself to decline employment. Potential employers need to check in order to assess their risk, it demonstrates due diligence and is also an important preventative measure to protect against workplace fraud, theft and violence. Once a conviction is picked up, the potential employer then takes into consideration the position applied for by the applicant, the type of criminal record, the nature and gravity of the offense, whether it is job related, and when it occurred. An employer can only decline employment if the criminal record is related to the inherent characteristics of the job applied for. An applicant convicted of fraud in past five years can be declined a position of trust in a finance department.

Further limitations exist, in that employers should be careful to make sure that their applications are legally compliant. An employer may not ask about arrests or detentions that did not result in a conviction. An employer may not ask about pending cases, as South African law says a person is innocent, until proven guilty.

Fair practice is by far the best. Criminal checking is by no means a process to keep rehabilitated individuals out of the job market. We know that they, more than anyone, need to be given a second chance and need employment. It is however vital for employers to know who they are employing.

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