When you’re applying for a job, you really have to put your best foot forward, because you’re not only competing against many other candidates (some may even be more qualified than you), but you’ll need to brace yourself for undergoing a demanding interview process.
But what happens if your employment history is marred by a minor criminal record?
Does this automatically mean that you’ll be overlooked for the job that you want?
Should you even reveal that you have a history?
It's no secret that many companies are careful and rigorous about the recruiting process. While recruiters and HR managers definitely look at your skill set, how you present yourself also makes a huge impact.
And that means being as honest as possible about anything you think could impede your chances of getting the job, especially if it’s a criminal record.
The fact is that it's not only essential to disclose the fact that you have a record, but it's also in your best interest to do so.
If the information doesn’t come first hand from you, it will eventually be revealed in a different manner. Not being open about your criminal past – no matter how minor – could potentially raise red flags for prospective employers because it could call your credibility and integrity into question.
Granted, you will undoubtedly have to take the risk and be prepared to navigate prospective employers who will have their fair share of concerns that you will need to address with them, but you will have a better standing with future managers and recruiters if you are upfront with them from the start.
And as painful as it is, you’ll be showing that you’ve got nothing to hide.
According to Careers24, the Employment Equity Act does protect you from discrimination, but it can't protect you if you lie about or withhold information about your criminal past, especially if your record relates to the post that you're applying for.
The act further states that employers are within their rights to ask job applicants about their criminal pasts.
However, according to Labourguide.co.za, it is advised that employers exercise caution when dealing with records as someone with minor infractions not related to the job position they’re applying for could have a case for discrimination should prospective managers ignore their qualifications and avoid hiring them because of their past.
To delve into the issue on a more in-depth level, we spoke to HR expert Helga Hellenberg and attorney and HR practitioner, Karel van der Molen who provided us with some insight (from an HR and labour law perspective) into how to go about disclosing your record, what your employment chances are and how long your felony charge will matter.
Helga reiterates the point above and says that it’s an absolute must that you disclose any information about any record you may have.??
She says, “It is better to disclose this information upfront rather than to wait for the results of the criminal check. By sharing the information upfront, it shows that the person is being honest, and allows them to express regret and share possible learnings through the experiences they have had.”
Karel agrees and adds that “you may get away with it and be employed, but if the fact of a criminal conviction comes to light at a later stage, this could lead to a disciplinary process, dismissal and other possible legal procedures which could have much worse longer-term results.”
And if you don’t disclose your record?
Not revealing your record could be considered lying by omission. Karel says that when someone doesn't explain that they have a criminal record and it comes to light years after the fact, that person can still be dismissed.
“There is a classic Labour Appeal Court (LAC) case of G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O., and Others (2016) which dealt with an applicant who had answered the 'Have you ever been convicted of a criminal offence?' in the negative. He had been working for the company for 14 years and was being considered for a promotion when his criminal record came to light. The LAC upheld his dismissal notwithstanding his 'clean' working record – it is all about honesty and trust!”
But what happens if you've committed a crime and it has nothing to do with the work that you're applying for? How much would your felony record influence your chances to get that job?
There are three things that this would depend on: the nature of the offence, the industry you’re aiming to get in and whether or not the company itself is willing to take the risk in hiring someone who was convicted of a crime.
??Helga adds that prospective employers would really need to exercise both caution and discretion and make a decision around it. Sexual assault, for example, she says, would “definitely impact on an employment decision as there is a risk that the previous behaviour could be indicative of possible future behaviour in a workplace.”
This means that any behaviour where there exists the possibility of seeing a repeat of it will most likely result in companies thinking twice before hiring that person.
However, Helga does note that if the crime was minor in nature and perhaps the employee sought help from a previous employer (e.g. in cases of drug problems) and has proven to be rehabilitated, the person may have a better chance at being employed.
Karel concurs and says that the advice to disclose remains the same, but adds that it’s “the prerogative of the employer to make a value judgment as to whether to consider the application.”
Also, if you have a criminal record, it can be erased after a waiting period.
After 10 years, you can have your record cleared. Karel says that there is a specific legal process that needs to be followed and it is usually applicable to minor offences (so it doesn’t count if you’ve been convicted of crimes like sexual assault, for example).
If due course has been followed, “this will result in your record being removed from the database of the Criminal Record Centre of the South African Police Service (SAPS). The force and effect of this is that it will be as if the conviction never took place.”
For more information on how to have your record expunged, you can visit the SAPS government site.
Helga states that despite this, and depending on the job, there may still be some companies who will require that you mention your crimes, even after you’ve had your record expunged. ??That said though, companies do need to toe the line and ensure that they aren't discriminating because of a petty criminal act.
While companies do reserve the right not to recruit someone with a felony charge against them, Helga notes that “companies should have a documented recruitment process in place; one in which certain checks are standard for all candidates in the final stages of the recruitment process.”
Companies need to ensure that by following due diligence and having a standard procedure that applies to everyone, regardless of whether or not they have a criminal record, the hiring process is a fair one.?? It's also advisable that if someone does have a record, an employer has a list of possible offences that indicate whether or not that person will be disqualified.
Karel says that any company should ensure that, in their application documentation, they use wording that is suitable, and legally compliant. They should also “not attempt to obtain information which goes beyond the basic question ‘Have you ever been convicted of a criminal offence? Yes/No? If Yes, please provide details of the criminal case, the date and place of conviction and the sentence’.”
Karel goes one step further and adds that a good safeguard for companies is that it must be stressed that having a criminal record does not mean that a candidate will automatically not be considered for the job.
He adds, “Automatically disqualifying an applicant because he/she has a criminal record could also be seen to be an automatic disqualification and that, in turn, could be a seen to be discriminatory – each case must be considered on its merits.”
Companies should also ensure that in their application they have a general clause which would ask the prospective candidate whether “all the details in the application are true and correct and that any omissions could lead to disqualification.”
On a final note, Karel states that employers reserve the right to conduct background checks, but that it should be clearly communicated during the recruitment process – preferably right from the start.
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