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POPI compliance: Checks and employment references

Faan Coetzee and Silindokuhle Malaza
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The introduction of the Protection of Personal Information Act, No 4 of 2013 (POPI) (not yet in force) will affect you, the employer, when you want to verify candidates' credentials. Employment references would include those from past employers and, where appropriate, a background investigation into the applicant's criminal and credit history. It's imperative that when you ask for employment references and do background checks on comply with, among others, the following POPI provisions regulating personal information.

7 Sections of POPI you – in your recruitment strategy – must know about

1. S9, which provides that the processing must be lawful and conducted in a reasonable manner that does not infringe the privacy of the candidate,

2. S10, which provides that the reason why the information is processed is adequate, relevant and not excessive,

3. S11, which provides that the candidate must consent to the processing,

4. S12(1), which provides that the personal information must be collected from the candidate directly subject to the provisions of s12(2),

5. S16, which requires the information - also from a background check or employment reference - be complete, accurate and not misleading,

6. S26 and 27 – that deal with the limitation and exceptions - regarding special personal information such as information concerning race, trade union membership, health, sex life or biometric information and criminal records, and

7. S14, which provides that records of personal information - also that obtained about applicants and their references – shouldn't be retained any longer than is necessary for achieving the purpose for which the information was collected or subsequently processed.

How do you process information lawfully from a previous employer?

The UK Information Commissioner's Office sheds some light in its suggestions on how employers can process information lawfully and fairly when a previous employer is asked to provide a reference for a former employee:

  • The employer should have a clear company policy stating who can give corporate references, in what circumstances and the policy that applies to granting access to references,
  • The employer should make anyone who is likely to become a referee aware of this policy,
  • The policy should specify a requirement that all those giving corporate references must be satisfied that the employee in fact wishes the references to be provided,
  • The employer shouldn't provide confidential references about an employee unless the employer is sure that this is the employee's wish,
  • As part of an exit policy or procedure, the former employer should include - on file - a record of if the employee wishes references to be provided after exit, and
  • Previous employers of an employee should ensure that that they don't retain any employee's unless it is essential to do so or required by law.

Consent is of utmost importance

Although POPI allows for credential verification and references to be obtained by or given to employers, they should carefully consider what information to verify and its source, relevance and quality. Obtaining the consent of the applicant for employment or the departing employee is very important. Using the contract of employment for consent purposes will be a justification for the processing of information of former employees.


Silindokuhle Malaza is a candidate attorney in the employment practice at Cliffe Dekker Hofmeyr. She joined the firm in 2014 after completing her LLB at UNISA.

  Faan Coetzee is a director in the employment practice at Cliffe Dekker Hofmeyr.  His areas of specialisation include labour and employment law, employee benefits, defamation and media law.
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