Sexual Offenses and Related Matters Amendment Act: Changes in the employment of sex offenders (Part 2)
Part 1 of the Employment of Sex Offenders in South Africa primarily focused on the amendments to the existing legislation, summarising and highlighting vital points for employers. [click here for Part 1]
To recap, the amendments now extend to any environment where the newly expanded category of “PERSONS WHO ARE VULNERABLE” either visit or are cared for. The category continues to comprise children and persons who are mentally disabled; adding people of 60 years of age and over who are being cared for in any facility; and females under 25 at universities or similar training institutions, who live in residences or receive vocational training as part of their employment.
While offenders are required to disclose their status to their existing employer or when applying for a new job, the onus to safeguard vulnerable groups, as defined by the act, is placed on employers.
In Part 2 we explore how employers can respond to the amended legislation, in consultation with EmployInsight, human behavioural specialists who specialise in human risk profiling to help minimise counterproductive behaviour in the workplace.
According to Erna Penning from EmployInsight, determining whether a person is a sex offender or potential sex offender is not only a complex and time-consuming process, but it also poses a league of other potential legal risks. She therefore advises deploying a multidisciplinary approach, which involves deploying a number of different screening tools, many of which also serve to root out counterproductive behaviour such as aggression towards colleagues and superiors, bullying or intimidation, dishonesty, cyber deviancy, sabotage, fraud and corruption, deliberately working slow, etc.
Approaches to screening employees for sexual offences
A criminal background check is becoming a crucial part of the employer or business owner’s approach to not only staffing, but also third-party service providers, volunteers, or anyone with an economic interest in providing services to vulnerable persons with whom they work.
Typically a criminal background check forms part of a sensible screening process during the hiring process. Applicants are generally more than willing to consent to the check upfront, and the challenge is easily solved. Convincing an existing employee to consent to the check after the fact, however, is likely to be far more complex, unless of course it is a company’s rules and policy not to appoint candidates with a criminal history. It furthermore goes against the tenets of a league of other regulations that form part of the likes of the Employment Equity Act (EEA) and the POPI Act, to name but a few. Simply put, the saying “prevention is better than cure”, applies in this instance as well.
When it comes to third parties such as contractors, service providers or volunteers, employers can exercise their right to reserve entry of premises, subject to a clear criminal record, or alternatively clearly stipulate this in the service level agreement or volunteer agreement, so this is a condition right at the start of the agreement.
The reason why a criminal check is a good point of departure to eliminate the chances of appointing a “sex offender”, is because it will highlight if someone was found guilty by any court, or is still awaiting trial on charges of sexual offences like child molestation, rape, indecent exposure, and so forth. At the lack of any of these, which may be due to records that have not been updated, there are other red flags as well, that can be taken into consideration when determining behavioural patterns that may pose a greater risk. Like a record of assaults, aggressive behaviour for example, or other deviant behaviour.
It is important to understand that a criminal background check on its own has its limitations, as it will not necessarily flag sexual offences. The reason for that is that only the National Register for Sex Offenders can indicate whether a person has been classified as a sex offender. Whilst all persons on this list have indeed been found unsuitable to work with children, mentally disabled people, or any other vulnerable people, as defined by the Act, these records are not open to the general public. The Act does specify that certain interested parties may apply to the Registrar to determine whether a person has been noted in the register, but it is a time-consuming process, and the application may not always be successful. So, to ensure that the criminal check is as thorough as possible without access to the National Register for Sex Offenders, EmployInsight advises employers to make it standard practice to supplement this with a comprehensive background check to confirm historical references with previous employers and/or other sources, and investigate behavioural patterns on other platforms such as social media profiles.
A key indicator of potential sexual offenders is “habitual deviance”. That is any form of counterproductive behaviour or deviant behaviour which violates workplace or societal norms. In the sociological sense of the word, “deviance” is simply any violation of society’s norms, and technically, sexual harassment and/or similar offences are categorised as such.
Examples include addictions (like drug abuse, alcoholism, and even pornography) and disorders (like anorexia, bulimia, or any self-harming practices).
The primary character trait to be on the lookout for is a profound lack of empathy and high impulsivity towards others. This usually means that they do not see themselves bound by the same norms that govern a society. They often see themselves as being above the law. And, with no inner reservations about their behaviour, they are open to any kind of activity.
While clinical psychometric tests are rarely an option in the workplace, industrial psychometric tests are. With certain personality and counter-productivity testing, it is possible to separate high-risk, low-integrity individuals from the collective with a high degree of certainty. This does necessarily not mean that they are sexual offenders, though, merely that they are more inclined to counterproductive behaviour in the world of work, or to be more correct, they are statistically more likely to be. Essentially, the deduction can be made that an employee with high ethics and/or integrity in the world of work, will be less inclined to any counterproductive work behaviour. Any such outcomes must however be dealt with very discreetly and with the utmost sensitivity, remaining mindful of all the legislation in place to protect worker rights.
Verification with the NRSO
Enquiring with National Register for Sex Offenders is the definitive answer, but the register is not yet open to the public and employment agencies. A standard operating procedure for such enquiries is yet to be determined.
Companies wishing to enquire have to complete a technical process in person at the NRSO. Candidates who work with children and other vulnerable people can also complete a specific form in person at the NRSO to clear themselves.
Various parties are negotiating with the Commissioner at NRSO for permission to ask on behalf of clients.
Advice to employers
Ideally, any organisation ought to look to a specialised services provider in this regard.
However, a third party cannot make such a request at this time. It is also important to understand that a standard employment agency or recruitment agency will typically not yet be properly equipped with knowledge to identify counterproductive work behaviours, as it is generally only clinical psychologists, psychiatrists and human behavioural scientists who are capable of performing this highly-specialised kind of analysis. So, when deploying an agency to conduct background checks, it is imperative to ask about their approach to identifying counterproductive work behaviour. Ultimately, the key is to find a provider with the insight to interpret data in meaningful ways.
Similarly, asking a few well-designed questions upfront can eliminate future legal actions for employers. Reading between the lines on an application form and looking beyond the obvious in interviews is crucial. The same goes for performance reviews and other engagements with anyone currently working with, supervising, or caring for a person who is vulnerable.
Ensure that you make informed decisions and don’t jump to conclusions. Attempt to compile human risk profiles on all relevant parties through:
- General background checks with current/previous employers and references provided.
- Online background checks through social media and Google searches.
- Criminal background checks with an accredited services provider.
- Psychometric testing through personality tests and counterproductive work behaviour tests, that are interpreted by specialists.
- Verification with the NRSO through an enquiry or the provision of a clearance form by the person, with the understanding that this verification process currently has limitations.
- Ongoing general awareness in the workplace and mitigating a culture that encourages speaking out on such offences and misbehaviour, with mechanisms for anonymous reporting or whistleblowing.
Human sexual behaviour is complex and dealing with sexual offenders/ harassment in the workplace is incredibly challenging. Especially where there are vulnerable parties present.
Sexual deviants do not operate in line with the norms of society, making it pointless to prescribe a set of normal behaviours to these offenders. The onus rests on employers to lead with proper specialist screening, be aware of the tell-tale signs that necessitate intervention, and act decisively through specialised assistance when dealing with these matters.
It is an unfortunate, but very necessary, condition in establishing safer environments for people who are vulnerable and safer workplaces in general.
Get expert assistance
For expert assistance from human risk profilers, EmployInsight, to help minimise the chances of appointing staff or suppliers who may be sexual offenders or display counterproductive behaviour, send an email to email@example.com, which is the dedicated, sub-contracted referral mechanism for business members and organisers of (SA)UEO.