Carrying out pre-employment checks or ‘screening’ of candidates in the UK (as in most of the rest of the world) is an important part of the recruitment process whereby organisations safeguard their business from any negative impact that might be caused by the recruitment of an individual.
For many industries there are often additional legal requirements placed on organisations to carry out certain pre-employment checks, for example checking whether candidates have a criminal record that prevents them from being employed in particular roles.
The risks UK organisations will wish to guard themselves against by screening will therefore vary across different sectors and between organisations, for example:
• In the retail sector, employee theft can occur and organisations will want to limit the risk of selecting a dishonest applicant.
• NHS Employers publish NHS Employment Check Standards which specify the checks that have to be carried out before employing staff in NHS positions across England. A failure to meet these standards could result in risks to the health and safety of service users, and have an impact on the organisation’s regulatory compliance.
• The Code of Practice on the Security screening of individuals employed in a security environment (BS7858) applies standards for security screening of staff, including the requirement to carry out financial checks.
In the UK, standard pre-employment due diligence will usually require organisations to complete the following checks:
• right to work
• criminal record certificates, where appropriate
• medical and health-related questionnaires
• validity of professional qualifications
• obtaining references from current or previous employers.
As candidates continue to embrace technology to create online profiles, more organisations are using online and social media checks during their screening process, including reviewing professional sites such as LinkedIn®.
There are risks associated with carrying out such checks and organisations need to ensure they are not falling foul of laws which are equally applicable to information received offline and that which is accessible publicly on the internet.
The specific checks an organisation requires may include reviewing an individuals’ background in areas other than employment, including, for example, identity, driving licence, address and credit checks.
The type of role, sector and organisation will help to determine which specific checks are beneficial; for example, a credit check is likely to be necessary to determine suitability for a management role within a charity, but deemed unnecessary for a teaching role in the education sector. It’s important to ensure any checks are proportionate to the role being recruited for.
The decision whether to recruit a particular candidate should always be focused on finding the most suitable person for the job, taking into account all the available evidence, including that which may come to light during screening.
Negative factors that may reflect on the candidate’s suitability could include:
• failure to observe safety requirements
UK Right-to-work checks
The key piece of legislation covering illegal working and right-to-work checks is the UK Immigration, Asylum and Nationality Act 2006 (the 2006 Act). This Act applies to any employment that started on or after 29 February 2008. This Act was amended by the UK Immigration Act 2016 (the 2016 Act). For employment that began between 27 January 1997 and 28 February 2008, the previous statutory regime under the Asylum and Immigration Act 1996 continues to apply.
Organisations are placed under a legal duty in the UK to prevent illegal working by carrying out right-to-work checks to ensure prospective employees can legally work in the UK. While failing to carry out document checks is not an offence in itself, organisations can be subjected to civil and criminal penalties for employing illegal workers.
Section 15 of the 2006 UK Act defines illegal workers as adults, those aged over 16, who are subject to immigration control and do not have permission to carry out the work in question because they:
• have not been granted leave to enter or remain in the UK, or
• their leave to enter or remain in the UK is invalid, no longer applies or prevents them from carrying out the particular employment.
A civil penalty of a maximum £20,000 fine per illegal worker can be imposed on an organisation for employing an illegal worker. The fines are intended to be proportionate to the organisation’s failure to comply with the legal duty and will be calculated on a sliding scale.
Organisations will gain a ‘statutory excuse’ in the UK against civil liability where they can evidence they have complied with the duty to carry out pre-employment right-to-work checks, and any required follow-up checks.
The initial document checks have to be carried out before employment begins.
To gain the statutory excuse, organisations are expected to follow the UK Home Office’s three- step checking process before the period of employment begins, and for any follow up checks.
Criminal record checks
The UK Rehabilitation of Offenders Act 1974 is the main piece of legislation regulating the disclosure of criminal records.
The UK Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (the Exceptions Order) lists roles under which employers can require disclosure of spent convictions.
The UK Exceptions Order was amended by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 from 29 May 2013 (the Exceptions Order 2013).
Many organisations consider that having information about a candidate’s criminal record will help them make a more informed recruitment decision, whether or not they are required by law to carry out such a check, while some sectors and job roles, such as roles working with vulnerable adults within the care sector, will require organisations to carry out a criminal record check before employment can commence.
In an attempt to balance the need for disclosure and the rehabilitation of individuals with criminal records, the ROA 1974 sets out the general rule that individuals who have been convicted of a criminal offence are considered to be rehabilitated if they do not re-offend within a specific period. As a result, their original conviction will be deemed to be ‘spent’ and will not be disclosed, unless an exception applies.
The criminal conviction remains ‘unspent’ during the specific rehabilitation period and should be disclosed where information on criminal records is requested. The length of the rehabilitation period depends on the type of sentence imposed and, since March 2014, any custodial sentences that are over four years will never be deemed ‘spent’.
Disclosure of spent convictions
The UK Exceptions Order displaces the general rule and states that, in certain roles, organisations can require individuals to disclose convictions that have become spent. These roles fall within five main categories:
• professional roles, for example solicitors and accountants
• officers or employees in roles requiring the upholding of the law, for example judges and prison officers
• specified regulated occupations, for example financial services and taxi drivers
• roles requiring work with children, caring for vulnerable people abd providing healthcare services
• roles in which the individual could pose a risk to UK national security.
Individuals who fail to disclose any information regarding a spent conviction, when there is no requirement to do so (see below), are protected against detrimental treatment or dismissal for this failure.
Before commencing employment in a role specified in the Exceptions Order, candidates can be asked to disclose any spent convictions, as well as any which are unspent. This is classed as an excepted question and the individual must be informed that they are under an obligation to answer this question.
A failure to answer the question, without a valid reason, or to provide truthful information can be treated by the organisation as a reason to withhold an offer of employment or to dismiss.
For these professions, organisations will also be required to carry out a pre-employment criminal record check.
Whilst a spent conviction will be disclosed by this check, asking the candidate the excepted question within their application or at interview means this information is received much earlier in the recruitment process, and before the offer stage is reached. The organisation will then be in a position to carry out an earlier review of the candidate’s suitability and they are also able to assess whether accurate information was provided when the certificate is later received.
Protected convictions and cautions
Following the UK Court of Appeal’s decision that blanket disclosures of all convictions and cautions in criminal record certificates unlawfully interfered with an individual’s right to privacy under Article 8 of the European Convention of Human Rights, the UK Home Office made changes to the criminal record check system in May 2013.
With effect from 29 May 2013, the Exceptions Order 2013 classes certain spent convictions and cautions as ‘protected’. These protected convictions and cautions are no longer be included in a criminal record check and organisations cannot take them into account when offering employment or dismissing an individual.
Protected convictions are those where this is the only conviction the individual has, it does not relate to a ‘listed offence’, such as a violent or sexual offence, and the conviction resulted in a non-custodial offence, where:
• the individual was aged under 18 at the time of the offence and a period of five and a half years or more has passed, or
• the individual was aged 18 or over at the time of the conviction and a period of 11 years or more has passed.
Organisations can ask all candidates to voluntarily disclose their criminal record information by including a question on this issue within application forms or as part of an interview.
Purely relying on voluntary disclosure, however, is unlikely to result in the organisation being provided with all the necessary information because candidates may fail to disclose all relevant details, or provide false details. Voluntary disclosure will also not be sufficient where the organisation is required to request a standard or enhanced certificate.
Section 184 of the UK Data Protection Act 2018 prohibits organisations from requiring individuals to disclose their criminal record through a subject access request as a condition of their employment offer, that is, from making an enforced subject access request.
An organisation will commit a criminal offence if they require job applicants to make this access request and can be subject to a fine. Rather than adopting this process during recruitment, organisations can make use of the criminal record disclosure schemes available to them.
Although an organisation’s policy on recruiting ex-offenders will usually set out practical aspects, such as carrying out criminal record checks and reviewing certificates, organisations may wish to go further than this and review whether their business practices support the employment of those with criminal convictions.
Good practice in this area includes:
• avoiding automatic exclusions of those with criminal records from recruitment
• providing training on software and skills, including soft skills, that may have lapsed over time
• only sharing details of the criminal record with those who need to know and in line with data protection obligation; making sure the individual knows the extent of confidentiality in this matter
• providing a positive ‘buddy’ system to integrate the individual back into working life
• reviewing the working environment to assess the risks, and determining whether any additional support is necessary.
UK Criminal Record Update Service
UK DBS certificates only contain correct information as at the date of issue; for example, if a conviction is imposed one week after the DBS certificate is issued, this will not be disclosed to the organisation.
As a result, organisations are advised to avoid the risk of relying on an out- of-date certificate by requesting candidates to provide a new one at the recruitment stage.
In sectors where up-to-date DBS certificates will be requested by each recruiting organisation, an applicant can avoid having to apply for a new certificate each time they move roles by subscribing to the DBS Update Service, and paying a small yearly fee.
Once subscribed, the online service allows the recruiting organisation to carry out a free online check on the prospective employee, with their consent, to determine whether there is any updated information to take into account since their previous DBS certificate was issued.
The Update Service avoids the risk that organisations are relying on information contained in a previous DBS check by allowing criminal record and barring information in relation to that individual to be frequently updated.
Obtaining employment references
Organisations are, generally, under no legal obligation to obtain an employment reference for a prospective employee. It is, however, common practice for organisations to request at least one reference from the individual’s current or most recent employer, with many asking for at least two referees to be provided on application forms.
Providing a reference
There is no automatic right to receive a reference from a previous or current employer, except for roles in organisations covered by the Financial Conduct Authority and the Prudential Regulation Authority.
When providing an employment reference, the organisation is under a duty of care to provide one that is true, accurate and fair, and must not give a misleading impression, including by omission.
UK case law has also established the following:
• References must give all, not part, of the history of the person: it is unfair to give partial facts if those result in the offer being withdrawn, for example where this causes the recipient organisation to assume the information is missing because it is negative, so the offer is withdrawn.
• References must not conceal facts from the organisation offering employment since they could sue for misleading information if this causes some detriment.
• References should give facts, not opinions, such as start and end dates, job title, salary and sickness absence (excluding any absence relating to disability or parental leave).
References may also provide additional factual information covering areas such as the employee’s performance, integrity, relevant personal information and reasons for leaving. Factual evidence must always be available to support any such statements in a reference.
To avoid breaching the duty of care and the risk of providing misleading information, many organisations have adopted a policy whereby they provide a brief reference that merely states the former employee’s job title, start and end dates of employment, and duties of the role.
Where this is the form of reference adopted, organisations should make it clear in the reference that it is their policy to only provide this information. This will ensure the limited reference does not raise any concerns with the prospective employer.
Receiving a reference
The organisation that receives the reference has to determine whether this is satisfactory.
Although this is a subjective determination, organisations are advised to remain focused on whether the reference confirms the prospective employee is suitable for the particular employment role, or if it renders them unsuitable, taking into account all other information collated during the recruitment process.
Under current EU & UK data protection legislation, organisations should ask prospective employees for their specific consent to obtain employment references from their prospective employees.
It is best practice to use a specific consent form for the prospective employee to sign and date, which also informs them of their right to withdraw their consent at any time.
The EU GDPR and UK Data Protection Act 2018 both provide that confidential employment references are exempt from the right for individuals (data subjects) to access personal data processed by organisations through a subject access request. This covers requests for access made to the organisation that provided the reference, and the organisation that received the reference.
Even though there is no requirement to disclose, organisations may still choose to provide the employment reference to the requesting individual and can ask the other party for their consent to do so.
A disclosure can take place without consent where third party information is not revealed, for example the identity of the author of the reference is redacted, or where it is reasonable to disclose the reference without their consent.
As such, there is no method of ensuring the individual concerned cannot view the information contained in the reference and, should a claim be brought in the employment tribunal where this document is relevant, the reference will be caught under the duty of disclosure during litigation.
It is therefore important organisations are aware of what information should, and shouldn’t, be included in the reference as the exemption within the legislation will not prevent all disclosures.
Online and social media checks
There has been a marked increase in the proportion of organisations making use of social media to research candidates’ backgrounds.
Numerous surveys have scrutinised the inclusion of social media checks in organisations’ recruitment processes, and a review by YouGov in the UK suggests that nearly one in five organisations have decided not to employ a candidate because of the content contained on social media profiles, with large organisations more likely to make this decision.
Using a search engine or social media in this way is not necessarily unlawful. However, it is important to balance the organisation’s interests with those of individual applicants, and organisations should be cautious about the way in which they approach such searches.
Carrying out online checks
Organisations should always approach online checks with caution, taking into account the following:
• information contained online may not always be accurate, up to date or provide context
• care needs to be taken to confirm that the information sourced online relates to the particular individual, especially where the individual has a common name or there are numerous online references
• organisations are advised to allow candidates to respond to any information they have found online, in the same way as they provide the opportunity to respond to any other information sourced during the recruitment process
• candidates need to be informed, at an early stage, that online searches may be conducted by the organisation. a privacy notice for job applicants can be used to inform the individual of the purpose of processing this data and the legal basis for this processing
• online searches should not be a ‘fishing expedition’; instead, searches need to be aimed at assessing whether the candidate is suitable for the job or not
• the laws relating to discrimination apply equally to checks carried out online.
Where information is sourced through social media which raises concerns about the candidate’s suitability, it is good practice to discuss this with the candidate.
The candidate may provide context that has not been considered by the organisation, for example, an online job resume may not match an application form because a previous employer had a social media policy prohibiting staff from linking their personal accounts to the business.
While the exact pre-employment process to be followed will differ between organisations, and will depend on the nature of the vacant role; due diligence in carrying out proper and accurate checks will result in the following benefits:
• more informed recruitment decisions
• reducing the potential risk to the organisation of recruiting unsuitable candidates, particularly for those working in sensitive roles
• compliance with legal and regulatory obligations
• preventing discriminatory decision-making
• improved recruitment and retention rates
• lower recruitment costs
• greater morale and reduced disruption across the workforce.
Always making offers of employment conditional upon the carrying out of satisfactory checks will allow organisations to take appropriate action, should the individual be deemed unsuitable for the role following additional disclosure of relevant information.
Using Trustopia’s intelligent screening platform for pre-employment checks
Trustopia’s intelligent screening platform enables enterprises automate the deployment of standardised pre-employment check processes straight out-of-the-digital-box, configurable to suit the size and risk requirements of any business including:
Basic Pre-Employment Check (BPEC) – ideal for low-risk temporary, contingent and contractual workers in all industry sectors
Standard Pre-Employment Check (SPEC) – ideal for medium-risk UK based full time employee roles in all industry sectors
Enhanced Pre-Employment Check (EPEC) – ideal for high-risk UK based senior and management roles in all industry sectors including roles that may require an enhanced level of risk checks
Additional check options an employer may wish to bolt on to any level of pre-configured Trustopia PEC (where not already included):
* Global ID document capture & validation with facial recognition (5000+ Gov ID Document types/c.130 Countries)
* Education and professional credential capture and verification
* Employment history verification
* Employment gap referencing
* Global travel history verification
* Social media profile checks
* Adverse media checks
* Driving licence status check
* UK DBS Disclosures or International Police Clearances
* Character reference checks
* Global bank account number validation
* Credit histories
* Age verification
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