In South Africa, the main law, which entails substantive obligations in the recruiting and hiring of employees is the EEA. The EEA seeks to eliminate unfair discrimination in employment and to ensure employment equity in the workplace.
Any pre-employment inquiry should have as its aim the assessment of the suitability of the applicant for the available position. Questions should therefore focus on the essential elements of the job and the necessary competency specifications. Questions relating to an applicant’s race, gender, sex or marital status, for example, should be avoided, save that questions relating to race, gender or disability may be permissible if the position to be filled forms part of the employer’s statutory affirmative action plan to affirm employees from statutorily recognized designated groups, such as black people (a statutorily defined term that includes Africans, Coloureds (a recognized term referring to mixed race people) and Indians), women and people with disabilities.
While there is no general prohibition against an employer doing background checks on an applicant, employers should not exclude an applicant from employment based on information obtained through background checks which is of no relevance to the advertised position or the suitability of the employee to occupy the position.
There is similarly no prohibition on conducting reference checks, although employers requested to provide information about a job applicant to a potentially new employer should enquire whether or not the employee has consented to the release of any information.
In South Africa, detailed information about a person’s credit and financial history (including court judgments) is obtainable from a credit bureau. However, the National Credit Act stipulates that a credit bureau can only issue a consumer credit report in certain prescribed circumstances, one being when an employer is considering a candidate for employment in a position that requires trust and honesty and entails the handling of cash or finances, and only with the prior consent of the job applicant.