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Is your employee screening policy legally correct?

A recent article on Carte Blanche, a current news programme in South Africa, discussed the expungement of criminal records and the sad state of companies taking advantage of individuals looking for work.

The current unemployment situation in South Africa is horrendous as we all know, and now with the Corona Virus bringing additional challenges to the impoverished it creates even greater challenges for the recruitment sector in the corporate world. A large number of companies have an employee screening policy and do good background checks but sadly not everyone understands the legal challenges there are that are linked to these policies.

At iFacts, we have written a policy that is available FREE of charge on our website (Click here to view) and this highlights the issues to be aware of when screening.

In South Africa potential employers will often do a criminal background check on a candidate for a permanent, contract or volunteer position. It is the most common background check done in South Africa despite the South African Police Services’ (SAPS) records not always being up to date and that the check does not provide information unless the candidate has been convicted of a crime in South Africa. Criminal checks are often used by potential employers to understand the candidate’s history, character and job fit OR to manage risk in an organization.

A criminal record check is not a police clearance certificate and is not accepted by embassies / consulates for visa applications or immigration purposes and the regulations around this police clearance certificate have recently changed.

• Criminal Record checks are done through an AFIS (Automated Fingerprint Identification Service) which is the database that is searched/scrutinized during the AFIS criminal check.

• In the event of a no-hit result (positive) AFISwitch returns a report indicating “no illicit activity identified???. This will indicate that the candidate has no criminal record.

• If there is a match found on the AFISwitch system, it sends a “SAPS Verification Requested??? report and asks if the applicant requires further information. If this is required SAPS processes an AFISwitch hard copy report (SAPS69) for return to the applicant.

• Results will include the full name, South African identity number (or passport number if they are non-South African), the charge, the case number, the date of the offence, the town in which the offence occurred, the sentence handed down and the date of the sentencing.

• Only a SAP69 will indicate if the candidate was found guilty of the offence or if there is a pending case against the individual. There have however been cases where the SAPS has not updated their records. An expungement process can be made use of here.

In terms of the South African labor law any form of screening on employees needs to be job specific; e.g. a person with a criminal record for driving under the influence could be disqualified from a position as a driver but it would be irrelevant if the person was applying for a job as a cleaner.

It should be remembered that in South Africa the crime rate is very high and the conviction rate is very low. A criminal record check alone is not sufficient to indicate true risks related to a candidate.

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