CAN I EMPLOY AN EMPLOYEE IN THE HAIRDRESSING, COSMETOLOGY, & BEAUTY INDUSTRY IF THEY HAVE A CRIMINAL RECORD?

In the dynamic and client-focused world of South Africa's beauty industry, salon owners, spa managers, and cosmetology businesses often face important questions about hiring practices, particularly regarding applicants or employees with criminal records. Whilst protecting your business, clients, and staff is essential, South African labour law including the Labour Relations Act (LRA), the Employment Equity Act (EEA), and the Protection of Personal Information Act (POPIA) requires employers to act fairly and avoid discrimination.

The key question isn't simply whether someone has a criminal record, but whether that record genuinely relates to the inherent requirements of the role.

This FAQ guide provides clear, practical answers grounded in South African legislation and case law to help you make informed, lawful decisions that balance business protection with fairness, human dignity, and the rehabilitation principles central to South African labour law.

1. Can an applicant’s criminal record be used to deny employment?

Not automatically. South African labour law prohibits unfair discrimination against individuals with criminal records unless the offence is directly relevant to the job. Employers in the beauty industry, such as salon owners or spa managers, must assess whether the conviction impacts the applicant’s ability to perform the specific role.

Under the Labour Relations Act (LRA) and the Employment Equity Act (EEA), rejecting a candidate solely due to a criminal history is unlawful unless the record relates to the inherent requirements of the position. For example, a past theft conviction may justifiably disqualify a candidate for a position handling client payments or stock.

2. What does “inherent requirements of the job” mean?

This refers to the essential duties or trust elements of a position. In a salon or spa, jobs involving direct client payments, expensive tools, or confidential client data may require higher levels of trust and integrity. If the criminal record undermines that trust, the employer may have lawful grounds to decline employment.

The O’Connor v LexisNexis (Pty) Ltd [2024] ZALCPE 11 case emphasised that employers must link the criminal record directly to the job’s nature. A conviction that is irrelevant or outdated, especially if the person has been rehabilitated, cannot fairly be used to deny employment.

3. Can employers run criminal background checks on applicants?

Yes, but only with the applicant’s written consent, as required under the Protection of Personal Information Act (POPIA). The information must be relevant, securely stored, and not used arbitrarily. Employers should avoid “blanket checks” for all positions and instead only screen for roles where integrity and safety are essential.

4. What happens if an employee hides a relevant criminal record?

Non-disclosure can amount to dishonesty, a serious form of misconduct. In G4S Secure Solutions SA (Pty) Ltd v Ruggiero (2015), the court upheld dismissal for dishonesty after an employee hid serious criminal convictions.

In the beauty industry, honesty is crucial where staff handle client property, cash, or personal data. Concealing relevant convictions can justifiably lead to dismissal if trust is broken.

5. Can existing employees be disciplined for new or past criminal offences?

Yes, if the offence affects the employment relationship. Crimes involving dishonesty, fraud, or violence may justify disciplinary action or dismissal where trust is compromised.

If an employee is imprisoned and unable to work, this may be treated as incapacity, as seen in Molehe v Public Health and Social Development Sectoral Bargaining Council (2019). However, employers must still follow fair procedure, giving the employee an opportunity to respond, even if through written communication from prison.

6. What steps ensure fair and lawful handling of criminal records?

Employers should:

• Assess whether the offence directly impacts job duties.

• Obtain written consent before any background checks.

• Keep criminal record data confidential and secure.

• Give applicants or employees an opportunity to explain the circumstances.

• Avoid blanket bans - evaluate each case individually.

• Follow fair disciplinary or incapacity procedures if action is needed.

7. How can employers balance fairness with business protection?

South African law encourages fairness, relevance, and procedural justice. Salon and beauty employers should focus on whether a past offence genuinely threatens workplace trust, client safety, or business reputation. Overly harsh or irrelevant decisions can result in claims for unfair discrimination or unfair dismissal.

A criminal record does not automatically bar someone from working in the hair, beauty, or cosmetology sectors. Employers must make informed, job-related decisions based on fairness and relevance. Balancing operational needs with human dignity and rehabilitation reflects not only good labour practice but also ethical leadership in the beauty industry.