Employment discrimination outlawed if based on a criminal record irrelevant to the work in question
Varuna Bunwaree Goburdhun
The Mauritian Equal Opportunities Act, 2008 (the “Act
”) prohibits and sanctions discrimination in employment on the basis of a person’s status. Status encompasses age, ethnic origin, race, sex and sexual orientation, among others. The Act has recently been amended to prohibit discrimination in employment on the grounds of a person’s criminal record, both at recruitment and promotion level, where a person’s criminal record is not relevant to the nature of his or her employment. Prior to the amendment of the Act, conviction-based discrimination was neither prohibited nor sanctioned in Mauritius. The prevailing practice in the Mauritian labour market was therefore not to employ prospective employees or promote employees with criminal records.
Considering the tendencies in the Mauritian labour market, the amendment is designed to increase the employability and professional advancement of people convicted of criminal offences that are not inherently related to the nature of the prospective employment or current employment.
As of 23 November 2017, any prospective employee or current employee who feels that he or she has been discriminated against on the basis of his or her criminal record at the time of recruitment or promotion can lodge a written complaint with the Equal Opportunities Commission within 12 months from the date of the alleged discrimination. If, after its investigation, the Equal Opportunities Commission is of the opinion that there is evidence of discrimination, the complaint may be referred to the Equal Opportunities Tribunal. The burden of establishing the relevance of the criminal record rests with the employer or prospective employer. In the event that the Equal Opportunities Tribunal finds that there was discrimination on the basis of criminal record and that the employer or prospective employer failed to establish the relevance of the criminal record to the nature of employment, the employer faces the risk of being ordered by the Equal Opportunities Tribunal to pay compensation up to an amount of MUR500 000 to the aggrieved prospective employee or current employee.
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