In the recent case of O’Connor vs Lexis Nexis, the South African legal landscape witnessed a significant development that has sparked debates and discussions on discrimination, employment policies, and the rights of individuals with criminal records. This case has brought to light crucial legal questions and moral dilemmas that resonate at various levels of society, from the individual to the employer and in the broader societal context.

Background Facts:

In the case of O’Connor vs Lexis Nexis, the applicant, Mr. Elsworth O’Connor (“Mr. O’Connor”) brought a case of unfair dismissal against Lexis Nexis (Pty) Ltd, a well-known publisher of academic and legal texts.

Mr. O’Connor applied for a remote work position at Lexis Nexis as a Senior Data Discovery and Enrichment Expert I. During the recruitment process, Mr. O’Connor disclosed his criminal record, related to a theft conviction twenty years prior, which at the time of his application was already expunged. Following a successful job interview, Lexis Nexis delivered an offer of employment to Mr. O’Connor via email, which he accepted on the same day. In the offer of employment, Lexis Nexis expressly stated that the offer was subject to Mr. O’Connor obtaining a “clear” criminal background check, amongst other conditions.

Mr. O’Connor subjected himself to a criminal background check and before receiving the results of this criminal background check, Lexis Nexis offered Mr. O’Connor a written employment contract which both parties signed. Additionally, Lexis Nexis gave Mr. O’Connor access to the company’s work portal to enable him to access his daily work schedule.

Nine (9) days before Mr. O’Connor was due to commence work, Lexis Nexis retracted its offer of employment since the results of the criminal background check revealed that the criminal charges against Mr. O’Connor from twenty years prior, were more serious than he had disclosed.

Despite revealing that these expunged convictions took place 20 years ago, Mr. O’Connor’s plea to Lexis Nexis to allow him to further explain himself was ignored.

Mr. O’Connor subsequently sought urgent recourse through the Labour Court by alleging that Lexis Nexis had discriminated against him by retracting their offer of employment due to his past conviction. The central issue at hand was whether Lexis Nexis’ refusal to hire Mr. O’Connor solely based on his criminal record amounted to unfair discrimination.

Legal Questions Raised and Court’s Findings:

The primary legal question revolved around the interpretation of the South African Constitution and the Employment Equity Act concerning discrimination based on criminal records in the workplace.

The Court scrutinized whether the company’s policy of automatically disqualifying candidates with criminal records was justifiable and whether it violated the constitutional rights of individuals with such records.

The court ruled against Lexis Nexis, declaring their blanket policy of rejecting candidates with criminal records as unfair discrimination. The court held that the automatic disqualification of candidates based solely on their criminal history without considering the individual circumstances or rehabilitation efforts amounted to a violation of the constitutional right to equality.

The Court also considered the relevance of the criminal record to the job requirements and held that Mr. O’Connor’s previous conviction had no bearing on the position he had been offered since he would be working remotely throughout the term of his employment whilst using “his own resources.”

The Court’s findings emphasized the importance of balancing the rights of individuals with criminal records to fair employment opportunities with the legitimate interests of employers in safeguarding their businesses and employees. The Court then ordered Lexis Nexis to employ Mr. O’Connor within ten (10) days from the date of the judgment.

Conflicting Moral Dilemmas:

At the individual level, the case raises questions about second chances, rehabilitation, and the right to work. It challenges the stigma associated with criminal records and the potential for individuals to reintegrate into society.

At the employer level, the dilemma lies in balancing the need for a safe work environment with the obligation to provide equal opportunities to all individuals, including those with criminal records. Employers must navigate between risk management and inclusivity.

On a societal level, the case highlights broader issues of social justice, inequality, and the need for a more nuanced approach to addressing past criminal behavior within the employment context.

Legal Framework:

The South African Constitution prohibits unfair discrimination on various grounds, including race, gender, and criminal record. The Employment Equity Act further reinforces these principles by promoting equality and fair treatment in the workplace.

Precedent and Future Employment Policies:

The O’Connor vs Lexis Nexis case sets a precedent by underscoring the need for employers to adopt more nuanced and individualized approaches when considering candidates with criminal records. It emphasizes the importance of assessing each case on its merits and considering factors such as the nature of the offense, rehabilitation efforts, and the relevance of the conviction to the job at hand.

Advice for Employers:

When dealing with job candidates with criminal records, employers should:

1. Conduct individualized assessments based on the specific circumstances of each case.

2. Consider the relevance of the criminal record to the job requirements.

3. Provide opportunities for candidates to demonstrate rehabilitation and suitability for the role.

4. Ensure compliance with the South African Constitution and the Employment Equity Act in all hiring practices.

In conclusion, the O’Connor vs Lexis Nexis case serves as a reminder of the complex interplay between discrimination, employment policies, and individual rights in the South African context. It underscores the importance of striking a balance between protecting the rights of individuals with criminal records and the legitimate interests of employers. By adopting fair and inclusive hiring practices, employers can contribute to a more just and equitable society while upholding the principles enshrined in the country’s legal framework.

Rasiluma TD Attorneys Inc. specializes in helping businesses draft and review employment policies and procedures, including those related to criminal background checks and factors concerning the recruitment of candidates with criminal records. Our experienced team provides tailored solutions to ensure compliance and mitigate risks. We also offer training and ongoing support to empower clients with the knowledge needed for effective policy implementation. Contact us today to learn how we can assist you in navigating the complexities of employment law with confidence.


1. J. Maggs. (2024), 23 April. “Possible new precedent set for hiring employees with criminal records.” MoneyWeb. Available at: ( accessed on 4 May 2024).

2. B. Masilela (2024), 16 April. “LexisNexis ordered to employ worker after revoking his contract following a criminal record from over 20 years ago.” IOL News. Available at: (accessed on 4 May 2024).

3. O’Connor v LexisNexis (Pty) Ltd (P18/24) [2024] ZALCPE 11 (11 April 2024). Available at: (accessed on 4 May 2024).

4. The Constitution of the Republic of South Africa, 1996. Available at: (accessed on 4 May 2024)

5. Employment Equity Act No. 55 of 1998. Available at: (accessed on 4 May 2024).

6. Employment Equity Act No. 55 of 1998 (as amended). Available at: (accessed on 04 May 2024).

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