Pre-employment checks:an employer’s guide

Guide December 2013

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1 Pre-employment checks: an employer’s guide

Pre-employment checks: an employer’s guide

ContentsIntroduction 2

1 What risks should employers guard against? 3

2 Circulating lists of high-risk candidates 5

3 Using social media to support recruitment 7

4 Employment references 9

5 Outsourcing and employment agencies 11

Appendix: Key legal issues relating to pre-employment checks 12

2 Pre-employment checks: an employer’s guide

Introduction

Conducting pre-employment checks on job applicants is an integral part of the recruitment process.1 This guide provides advice to employers on how to conduct such checks in a way that will support their business objectives. Careless approaches to vetting and screening risk employing the wrong people, with resultant damage in terms of increased turnover and costs, and lower morale. They also risk legal challenge, which can undermine an employer’s reputation.

There are several reasons why fresh guidance on good practice in conducting pre-employment checks is needed:

• There is increasing public recognition of the need for employers to adopt practices that are both legal and ethical.

• Recruitment processes are being increasingly influenced by the development of social media. Two in five employers say they look at candidates’ online activity or profiles in order to inform recruitment decisions.2 The legal implications of shifting practice in this area are not yet fully clear.

• The continued shift towards outsourcing means that it may be unclear which organisation is responsible for conducting pre-employment checks.

• Traditional methods of checking out applicants’ credentials through following up employer references may be of limited value since many employers are reluctant to make negative comments for fear of legal challenge.

• Poor recruitment practices may be unfair to individual applicants, for example by discriminating against members of particular groups or by giving weight to inaccurate or misleading information.

The following guidance draws on discussion with HR professionals and employment lawyers with extensive experience in conducting and advising on recruitment.

It takes account of the law on discrimination and data protection, which are core to this area and which are under constant review by the courts. CIPD members can access more detailed advice on legal issues (particularly in relation to discrimination and data protection) at the ‘Employment law FAQs’ section of the CIPD website. An outline of other key areas of law relevant to pre-employment checks, including in relation to criminal records, is at the Appendix. Employers may also need to take account of statutory requirements applying to recruitment in their specific sector (for example finance).

However, the core principles underlying the guidance are relevant to all sectors. In conducting pre-employment checks, employers should aim to:

• protect the organisation• protect clients and customers• be fair to all candidates• ensure non-discrimination and compliance with data

protection law• rely on fact, not opinion• validate information to be relied on• ensure relevance to the post to be filled• see the candidate in the round• be transparent and open to candidates about the

checking process.

Good practice action points are listed at the end of each section.

The CIPD is extremely grateful to all those people who have helped in the production of this guide, and particularly to members of the advisory committee of the CIPD Recruitment Forum, whose experience has been invaluable. Special thanks are due to Jane Mann and her colleagues at Fox Williams for producing the Appendix.

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1 For a general introduction to the processes of recruitment, selection and induction, see the Acas advisory booklet at http://www.acas.org.uk/media/pdf/l/e/Recruitment_and_induction_(October-2012)-accessible-version-may-2012.pdf2 Social technology, social business? at http://www.cipd.co.uk/hr-resources/survey-reports/social-technology-business.aspx

3 Pre-employment checks: an employer’s guide

1 What risks should employers guard against?

Conducting pre-employment checks is sometimes referred to as ‘vetting’. The purpose is to establish eligibility, including in relation to eligibility to work in the UK and criminal records: it sets minimum criteria for recruitment. ‘Vetting’ originally referred to the requirement that a horse be checked for health and soundness before being allowed to race; it can be distinguished from screening, which is about getting the right fit in relation to, for example, skills and experience.

Having carried out an appropriate selection process to determine suitability for the role, employers need to conduct due diligence in order to find out if applicants might bring the organisation into disrepute, or cause difficulties with colleagues, managers, customers or suppliers. Failure to establish relevant information could mean that HR has failed to show due diligence: vetting is a key element in conducting ‘due diligence’ in relation to the recruitment process.

Specific risks to be guarded against will vary from one sector and one employer to another. For example:

• In the retail sector, theft by employees is not infrequent and employers will want to satisfy themselves that job applicants are honest.

• The NHS Employment Check Standards, issued by NHS Employers, outline the employment checks employers must carry out before appointing staff into NHS positions, across England. Failure to comply could potentially put the safety, and possibly the lives, of patients, staff and the public at risk.

• The Code of Practice on the Security Screening of Individuals Employed in a Security Environment (BS7858), reissued in April 2013, requires such individuals to have undergone a financial background check.

Specific checks required may include individuals’ background in areas other than employment, including, for example, identity, driver’s licence, address, media and credit checks.

Employers have wide discretion, within the law, to decide whether or not to recruit a particular candidate. They need to use the selection process, including vetting, to find the best person for the job, taking into account all the available evidence. Negative factors

that might influence the decision could, for example, include:

• theft• bullying• assault• fraud• failure to observe safety requirements.

Specific disciplinary offences may provide grounds for an employer to exclude an individual from employment. Examples from the construction sector might include, for example, having a mobile phone on site (if expressly forbidden for health and safety reasons); failing a drugs or alcohol test; fighting; being caught with incendiary materials such as matches; and misuse of swipe cards.

Some factors to be taken into account may be more subtle or subjective. Particularly in senior posts, it may be important to establish that there is a good ‘fit’, for example in terms of attitudes and/or experience, between the candidate and the team to which they would be recruited. In some instances employers may give equal weight to candidates’ attitude as to their skills and qualifications.

Many people admit to having lied on their CV, particularly about their experience, qualifications or salary. Illegal immigrants may use false documents. Employers can help to manage the risks of candidate dishonesty by using the following phrase on application forms:

‘I declare that the information given in this form and in any accompanying documentation is true to the best of my knowledge and belief and give my permission for enquiries to be made to confirm qualifications, experience, dates of employment, right to work in the UK and for the release by other people or organisations of necessary information to verify the content. I understand my application may be rejected and/or I may be dismissed following appointment if I have given any false or misleading information or have withheld any relevant details.’

4 Pre-employment checks: an employer’s guide

Guidance on good practice is for employers to:

• base recruitment decisions on evidence

• be clear what specific risks they are seeking to guard against

• ensure that any negative evidence is based on fact and not simply opinion

• weigh such evidence against other information, in order to have a more complete picture of the candidate’s suitability

• consider the evidence in relation to the particular post to be filled.

The CIFAS Staff Fraud Database is a data sharing scheme that enables responsible employers to record proven cases of staff fraud in order to prevent the perpetrator moving unchallenged to a new employer to commit further fraud. An employer accesses the database to:

• screen applicants or current employees, to ensure that there are no staff fraud records filed by other participating organisations.

• record data about identified staff fraud cases.

The Staff Fraud Database is not limited to permanent staff so can be used to vet contractors and agency workers, offering organisations additional protection in these high risk areas.

The launch of the database was carried out in consultation with the Information Commissioner’s Office, the Financial Conduct Authority, the CBI, the Trades Union Congress and the CIPD. For further information contact staff.fraud@cifas.org.uk

5 Pre-employment checks: an employer’s guide

2 Circulating lists of high-risk candidates

‘Blacklisting’ is narrowly defined by statute (see box) and is clearly unlawful. The Employment Relations Act 1999 (Blacklists) Regulations 2010 apply only to situations where workers’ names are put on a list because of their union membership or activity.

If a list is not compiled for the purpose of discriminating against trade union members or those who have taken part in union activities but for a legitimate purpose (as in the recent case of Maunders v Proteus Well Services Ltd and others ET case no 1810036/2010 where the reason the claimant had been included on a security database was found to be his aggressive behaviour towards a member of security staff), the list will not be a blacklist as defined, even if some of those on the list are trade union members.

However, it is important to be clear what is, and is not, a blacklist.

There is a wider question whether it is legitimate for an employer to put the names of former employees onto a list that can be accessed by other employers. It would for example be highly problematic to include people’s names on such a list simply because they are regarded as ‘trouble-makers’. Concerns may also arise in relation to data protection; for example:

• the requirement to tell individuals how information about them is used, and to allow them access to that information

• the difficulty of reliably verifying that a candidate’s identity is the same as one on a list

• the difficulty in ensuring that information is accurate and that reasons for inclusion are verified

• events which occurred several years previously are less likely to be relevant to a candidate’s suitability later on.

There may however be cases, particularly where the employer owes a duty of care to vulnerable people, where the production of a list is legitimate. Within a sector such as healthcare, where the duty of care to patients is of overwhelming significance and the NHS has by far the major share of the market, individual trusts might wish to share information about employees where there is evidence of the kind of misbehaviour that would put patient safety at risk.

In such cases, the duty to share information might not be limited to the employer, but might apply to any upstream body such as the NHS, or local authority, or client, whose reputation is liable to be affected by recruitment practices in the sector and is in a position to exercise authority or offer advice to employers.

A critical element in all such cases will be the existence of evidence of actual wrongdoing. Where evidence is already in the public domain, it may be legitimate to draw this to the attention of an employer seeking a reference. It will not be fair to the individuals concerned, however, to make widely available information based solely on suspicion, or hearsay, or derogatory opinions.

Where vulnerable people are at risk, in the health, education or care sectors for example, employers have a duty of care to protect them. So an employer that has evidence that a head teacher has formed an inappropriate relationship with a pupil, for example,

What is a blacklist?

This is a list containing details of people who are or have been members of a trade union or who are or have taken part in trade union activities and compiled with a view to it being used by employers or employment agencies for the purposes of discrimination in treating them less favourably on grounds of union membership or activities.

The Department for Business, Innovation and Skills defines ‘blacklisting’ as the ‘systematic compilation of information on individual trade unionists [used by] employers and recruiters to discriminate against those individuals because of their trade union membership or because of their involvement in trade union activity’.

The question whether an applicant has been unfairly discriminated against on grounds of union activity will be a question of fact. So if an applicant is rejected as a result of being placed on a list because of their previous involvement in industrial action, this might well be regarded as blacklisting. However, BIS advice suggests that involvement in unofficial industrial action would not qualify for protection.

6 Pre-employment checks: an employer’s guide

will wish to record that evidence. If the employer is approached for a recommendation by another employer contemplating recruiting that head teacher, it would be a failure of responsibility to other children not to draw that other employer’s attention to the evidence of misbehaviour.

In summary, producing a list of people who are not judged suitable for further employment in a specific sector will not necessarily be unlawful, but should be considered only in strictly limited circumstances:

• Producing or using lists of individuals in order to discriminate against them because of their trade union membership or involvement in trade union activity is unlawful and should in no circumstances be undertaken.

• Producing or using lists of individuals in order to safeguard the welfare of vulnerable groups is unlikely to be unlawful. However, great care should be taken in the compilation or use of such lists, particularly having regard to legislation on data protection and discrimination.3

• Where potentially damaging information about individuals is shared with other employers, it is good practice to make clear who has been responsible for sharing the information and can be approached for further details if necessary.

• Individuals should be made aware if their name has been added to the list, and given the opportunity to challenge it.

• In any case where an individual is refused employment because their name is on a list, that information should be shared with them.

• It will not be fair to individuals to make widely available information based solely on suspicion, or hearsay, or opinion.

3

3 See Guidance for Employers on Sharing Information about Healthcare Workers where a Risk to Patient Safety has been Identified at http://www.nhsemployers.org/EmploymentPolicyAndPractice/UKEmploymentPractice/Pages/Guidanceforsharinginformation.aspx

Since this is a controversial and developing area of law, specific legal advice should be taken on the compilation, distribution and use of such a list, in light of the particular circumstances in which it will be used. Further developments in the law, regulation and legislative policy can be anticipated.

7 Pre-employment checks: an employer’s guide

3 Using social media to support recruitment

There has been a marked increase in the proportion of employers making use of social media to research candidates’ backgrounds. CIPD research suggests that 6% of employers ‘always’ look at job applicants’ online activity or profiles to inform recruitment decisions, and another one in three do so at least sometimes. Using a search engine or social media in this way is not necessarily unlawful. However, it is important to balance employers’ interests with those of individual applicants, and employers should be cautious about the way in which they approach such searches.

Bear in mind that information on the Web may not always be accurate. Responsible organisations should allow candidates to respond to any information which has been obtained through these mechanisms. Then, appropriately to the role, organisations should take account of any mitigating facts or explanation of inaccuracies before withdrawing offers.

To avoid risk of legal challenge, employers should make applicants aware at an early stage that they may conduct such searches. Employers should take care to observe the Employment Practices Data Protection Code 2002 published by the Office of the Information Commissioner, and ensure that searches are targeted on finding information relevant to the decision whether or not to employ, and are not simply a ‘fishing expedition’. Employers should also bear in

mind that the law on discrimination applies equally to online and offline checks (for example interviews).

Some employers may choose not to use online searches to assist in pre-employment vetting, on grounds of relevance or because it may disadvantage candidates who do not have access to or do not use social media.

Use of social media is developing rapidly and it is currently difficult to lay down hard-and-fast rules for employers. It is currently unclear how far a ‘right to privacy’ applies in respect of social media. However, law and practice in other EU countries and in the United States is currently more restrictive than in the UK and it is realistic to assume that UK law will move further in this direction.

LinkedIn is used for mainly professional purposes, but some forms of social media, including for example Yammer and Twitter, may have mixed public and private usage. One half of respondents to a CIPD survey of social media in 2013 said that they separated their personal use of social media from their professional use. Both Twitter and Facebook have open and closed access. People who upload material to open-access sections of social media may reasonably anticipate that this source may be searched by potential employers.

Data protection

The Data Protection Act states that anyone who processes personal information must comply with eight principles, which make sure that personal information is:

• fairly and lawfully processed – candidates should be aware that checks may take place• processed for limited purposes – employers should be clear about the purpose of the checks. This will help

them to decide what kind of information should be collected• adequate, relevant and not excessive – the monitoring and collection of information should be limited to

what is relevant in the circumstances of each case• accurate and up to date – employers need to be sure that the profiles they access do genuinely belong to

the person being vetted• not kept for longer than is necessary – employers should not retain information if they do not intend to

use it in future. Clear retention schedules should be developed• processed in line with individual rights – in particular, individuals should be able to exercise their right of

subject access to obtain copies of the information held• secure – the information must be protected against external threats (for example hacking) and access

to the data within an organisation should be limited to those staff who have a business need to see the information

• not transferred to other countries without adequate protection.

8 Pre-employment checks: an employer’s guide

The implications of data protection legislation are likely to become clearer over time. Meanwhile, employers should consider applying the following general principles if they wish to access candidates’ social media profiles:

• Respect the same restrictions that apply to offline checks (for example interviews) in relation to discrimination.

• Take reasonable steps to ensure the accuracy of information accessed online.

• Distinguish between social media for mainly private purposes and social media for mainly professional purposes. So use of LinkedIn is legitimate but don’t use Facebook.

• Personal data may be accessed insofar as it is relevant to suitability for the role and relates to candidates’ personal capabilities and skills, education and experience.

• Social media searches should be used to look for specific information and not as a general trawling exercise.

• Social media searches should be carried out as late in the recruitment process as reasonably practical.

• Applicants should be informed at the outset if online sources may be used to collect information about them.

• Information generally available online (for example through Google) can be used.

• However, employers should collect no more personal information than is needed, and should not collect information that is irrelevant or excessive.

• Applicants should be given an opportunity to respond to material findings from online searches, where the findings form part of the decision-making process.

• Personal data collected during the recruitment process should not be kept for more than two years where the applicant was not hired.

• Employers should develop a clear policy towards the use of social media for recruitment purposes, in consultation with employees or their representatives.

9 Pre-employment checks: an employer’s guide

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4 Spring v Guardian Assurance plc [1994] IRLR 460.5 http://www.ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Data_Protection/Detailed_specialist_guides/subject-access-code-of-practice.PDF

4 Employment references

Organisations can request employment references to establish the facts of employment, one of which should be from the most recent employer, supervisor or educational establishment. Good practice is only to seek employment references once a job offer has been made, not prior to interview. Allowing interviewers to read references prior to meeting candidates could be interpreted as allowing the potential for unfair discrimination. Some universities refuse to provide employment references prior to a job offer being made.

There is no automatic right to a reference, except in organisations covered by the Financial Conduct Authority. Care must also be taken if refusal to supply a reference could be seen to be discriminatory, for example as victimisation after the individual has complained about discrimination. However, it has been stated by the House of Lords4 that employers have ‘at least a moral obligation’ to provide references. Employers usually provide references since:

• There may be an express or implied contractual term that the employer will provide a reference. This may arise if it is normal practice to give a reference in that type of work and it would be unreasonable to expect a new employer to take on the employee without one.

• A refusal could mean adverse inferences being drawn about the employee concerned.

Employer references are often said to be of limited use since typically they may simply confirm that the candidate worked for the organisation between specific dates. Many employers fear they may be sued if they offer a negative comment that can be shown to be incorrect. Such fears can, however, be over-stated. The key issue to bear in mind is that employers are under a duty of care when providing a reference to provide one which is true, accurate and fair and does not present facts so as to give a misleading impression overall, including by omission.

Moreover, there are downside risks in providing ‘bare minimum’ references. A former employer may be exposed to a negligence claim from a subsequent

employer if they fail to reveal something which ultimately causes the new employer loss. If an employee leaves with serious questions hanging over their performance or conduct, or if these concerns arise after the employee has left, the employer should disclose the issues accurately to any prospective new employer. However, the employer should also be careful to make absolutely clear if the allegations have, or have not, been investigated.

Case law has established that:

• 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.

• References must not conceal facts from the employer offering employment since they could sue for misleading information which has caused some detriment.

• References should give facts, not opinions. For example, a reference might say: ‘X was employed from … to …’. It might also include job title, salary and sickness absence (excluding any absence relating to disability or parental leave).

References might also include factual information bearing on 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.

Data protection legislation specifically excludes the right of the individual (data subject) to obtain a reference from its author. However, employment tribunals are increasingly insisting that phrases which caused the withdrawal of the offer should be shown to the applicant. There is no exemption for the organisation which received the reference. However, they may be able to withhold information which is also the personal data of the author if it is reasonable to do so. In some cases it will be reasonable to withhold the author’s name but not the contents of the reference itself. The Information Commissioner has published a subject access code of practice which includes guidance on providing individuals with copies of references.5

10 Pre-employment checks: an employer’s guide

References should be followed up, and the fact that this has been done checked by internal audit. Telephone references, or notes made from a follow-up conversation, can be viewed by the applicant for a fee, since the organisation is the data controller and the applicant is the data subject. Academic references should be requested if particular qualifications are cited in person specifications as necessary for post-holders. Universities should be able to confirm that a particular degree was awarded, providing they are given precise names (candidate, course) and dates.

In addition to employer references, other checks can also be undertaken as part of a pre-employment screening process to obtain a rounded picture of whether someone is a fit and proper person to undertake the role to be filled (see section 1).

Good practice in relation to references can be summarised as follows:

Informal conversationsAn employer may wish to follow up a formal reference on a candidate by telephoning a previous employer and asking specific questions. Caution may however be needed in interpreting what is said in such a conversation. The employer is speaking to someone they have probably never met and who is in effect a total stranger. Where a conversation takes place between employers within the same sector or geographical area, there may be a basis for greater familiarity or confidence in what is said, but equally there may be a risk of ‘groupthink’ which could unfairly prejudice a candidate’s standing.

Where potentially damaging information about candidates’ history is referred to in informal conversation, good practice suggests that:

• Employers should ensure that references they supply are true, accurate and fair in substance.

• References should offer facts, not opinions.

• References should mention negative issues such as gross misconduct or events giving rise to a disciplinary process in a way which is overall accurate and correct.

• Employers should seek employment references once a job offer has been made, not prior to interview.

• References should be read with a positive mindset, and not seen simply as an opportunity to pick holes or find fault.

• Applicants should be shown phrases which have caused the withdrawal of an offer.

• It should not be used as a substitute for the employer making their judgement: the employer has to take responsibility for making their own decision.

• Such evidence needs to be weighed against evidence from other sources and should be used to support a balanced decision, not as a shortcut to replace the employer’s own judgement.

• An individual’s circumstances may change and it will generally be appropriate to check out adverse inferences by raising them with the individual concerned.

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5 Outsourcing and employment agencies

CIPD surveys suggest that half of all employers see recruitment agencies as an effective method of attracting candidates. Recruitment agencies fulfil an essential role in the UK’s flexible labour market and the recruitment sector has worked hard in recent years to maintain its reputation and promote good employment practices.

Particular issues in relation to pre-employment checks can arise, not only for employers who use employment agencies, but more generally in managing the supply chain. Some companies offer an employee vetting service independent of labour supply, whereby they are engaged at the offer stage and the candidate supplies personal details to be checked by the third party on behalf of the employer. HR and recruitment consultants may also act as intermediaries, for example by supplying vetting specialists to sit alongside employers’ payroll teams.

Baseline checks might include establishing the right to work in the UK, identity and reference checks in order to validate skills and experience. Employment agencies may also offer specialist help in conducting the detailed checks required in specific sectors such as finance or IT.

Although employers may believe they can avoid the need to engage in time-consuming statutory and other checks by using the services of employment agencies, they cannot protect themselves against possible damage to their reputation by distancing themselves from the recruitment process. Employers should have contracts in place with employment agencies to guarantee data security and quality.

Where employers use employment agencies or other intermediaries to help recruit workers, they should:

Labour-only subcontractorsThe Ethical Trading Initiative (ETI) is an alliance of companies, trade unions and voluntary organisations that aims to improve the lives of poor and vulnerable workers across the globe who make or grow consumer goods. The ETI has published a base code that draws on ILO conventions and contains nine principles, of which the eighth requires that ‘Regular employment is provided’. Paragraph 8.2 says that employment regulations ‘shall not be avoided through the use of labour-only contracting [or] subcontracting…’.

Because labour-only workers are self-employed, contractors pay no National Insurance Contributions (NICs), sick pay or holiday pay. The Construction Industry Scheme (CIS) is a set of special rules for handling payments for construction work that contractors make to subcontractors and applies to all construction work carried out in the UK. HMRC publishes an Employment Status Indicator (ESI) tool that enables an employer to check the employment status of an individual or group of workers – that is, whether they are employed or self-employed for tax, NICs or VAT purposes.

Labour-only subcontractors and their workers will generally be self-employed, in which case the issue of pre-employment vetting will strictly not arise. But clients and contractors will want to:

• Choose a reputable agency that takes steps to protect its own reputation (for example by seeking to recruit local labour, or to guard against health and safety risks by asking the right questions of jobseekers).

• Agree what specific pre-employment checks are necessary and appropriate, ensuring that these are non-discriminatory and relevant to the job(s) to be carried out.

• Specify in a service-level agreement with the supplier what checks are to be carried out.

• Be clear about the respective responsibilities of client and agency, particularly in relation

to vetting: if in doubt, duplication is preferable to leaving gaps.

• Be clear about the employment status of staff supplied by an agency: are they employed by the agency or the employer?

• Ensure that appropriate checks are in place for both permanent and temporary staff.

• Be aware of any secondary suppliers and establish which agency takes responsibility for the integrity of the vetting process as a whole.

• be confident that labour-only subcontractors are reputable

• incorporate in commercial contracts a requirement that subcontractors should follow the guidance on good practice in this guide

• ensure that labour-only subcontractors meet their legal obligations, including where appropriate under the Construction Industry Scheme.

12 Pre-employment checks: an employer’s guide

Appendix Key legal issues relating to pre-employment checks

(A) Right to work in the UKEmployers are subject to statutory penalties for employing foreign nationals who do not have lawful permission to work in the role in question. This is to incentivise and enforce good prevention of illegal working practice. By inspecting and copying prescribed identity and status documents in accordance with a code of practice, employers acquire a statutory excuse from penalties unless they knowingly employed the illegal worker. Licensed sponsors of migrant workers under the Points Based System must adhere to good prevention of illegal working practice; failure to do so can be a breach of licence terms resulting in the downgrading or revocation of the sponsor licence.

Statutory basis of penalties and excusesSection 15 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) [http://bit.ly/17tVfQm] defines an illegal worker as a person aged 16 or over who is subject to immigration control and not allowed to carry out the work in question. Illegality may arise because the worker has not been granted leave to enter or remain in the UK, or their leave is invalid, has expired or been cancelled, or does not permit the employment in question. The 2006 Act sets out a civil penalty regime whereby a penalty of up to £10,000 per illegal worker can be imposed on an employer following service of a Notice of Liability (NoL). The penalty is calculated on a sliding scale, with provision for reductions in each of the following cases: where partial checks were carried out, where the employer self-reported the breach, where the employer subsequently co-operated with the Home Office investigation, and for first and second (but not subsequent) breaches by the employer. In the first instance of illegal working, depending on the circumstances, the employer may receive a warning letter in place of the penalty if partial checks were carried out. This is the published framework; it is not unusual for the Home Office to be more lenient in cases where the employer’s breach clearly arose from an oversight or lapse from generally good practice. This flexibility is due to be reduced

as a result of recent consultation proposals – see below.

Actual knowledge of illegality defeats the statutory excuse. Under section 21 of the 2006 Act [http://bit.ly/1gkCxEl], it is a criminal offence to knowingly employ an illegal worker. Criminal penalties include imprisonment for up to two years for complicit employers, and an unlimited fine. The 2006 Act applies to employment which commenced on or after 29 February 2008. The previous penalty regime under the Asylum and Immigration Act 1996, which carries a strict liability criminal penalty only, still applies to employment which commenced between 27 January 1997 and 28 February 2008.

Pre-employment checks: processProcedure for carrying out right to work document checks sufficient to establish the statutory excuse is set out in Home Office guidance published from time to time.

OverviewThe current full guidance for employers on preventing illegal working in the UK (May 2012) [http://bit.ly/14A5Ra] sets out a three-step process for inspecting and copying documents. In order to acquire the statutory excuse, checks must be completed prior to employment commencing.

Acceptable documentsThe three-step process cross-references two lists of acceptable documents, A and B. In each list, there are alternative single documents and specified combinations of two documents. The guidance warns against asking for more documents than those specified, except where there is a need to explain a discrepancy (see below).

List A documents demonstrate that the holder is not subject to immigration control, or has no restriction on the length of their stay or on the work they may do. If checked and copied correctly, List A documents evidence an ongoing right to work in the UK, and establish

13 Pre-employment checks: an employer’s guide

the statutory excuse. Single List A documents include a full British passport, an EEA passport, a permanent residence card issued to the family member of an EEA National and a biometric residence permit issued by the Home Office, showing that the holder has ‘settlement’ or ‘indefinite leave to remain in the UK’. Document combinations include an official document issued by the UK Government showing the holder’s NI number and name, together with a UK birth certificate naming the holder and at least one parent.

List B documents establish a time-limited right to work in the role in question for up to 12 months. They must therefore be requested at intervals during employment, as well as at the pre-employment stage. Examples of single documents include a passport of travel document endorsed to show that the holder is allowed to stay in the UK and to do the work in question, or a biometric residence permit issued by the Home Office indicating the same. Document combinations include a document issued by a previous employer or Government agency showing the National Insurance number and name of the holder, together with a letter issued by the Home Office or one of its previous agencies to the holder or employer or prospective employer certifying that the person named can stay in the UK and do the work in question.

The three-step checking processThe checker must be an officer, member or employee of the employing organisation. The checking process cannot be outsourced.

Step 1: You must request and review one of the single documents, or two documents from a specified combination, from either List A or List B. Only original documents are acceptable.

Step 2: You must take all reasonable steps to ascertain that the document is genuine, relates to the holder and permits the work in question. This includes:

• checking photographs for consistency of appearance

• cross-checking consistency of dates of birth• checking expiry dates have not passed on

documents presented• ensuring that UK Government endorsements

show that the work in question is permitted, and not prohibited. This includes the number of hours worked; for example, full-time

students in Tier 4 may work, but are restricted to 20 hours per week in term time

• require reasonable explanation, with additional evidence, of any discrepancy (for example name change on marriage), and

• satisfy yourself that the documents are genuine, have not been tampered with and belong to the holder.

Step 3: You must take and retain a copy of the relevant page or pages of the document in a permanent format which cannot be altered. The guidance gives the example of a photocopy or scan. It also specifies that in the case of a passport or other travel document, the following parts must be photocopied or scanned:

• document’s front cover and any page containing the holder’s personal details. In particular, you should copy any page that provides details of nationality, includes photographs, date of birth, signature, date of expiry of biometric details, and

• any page containing UK Government endorsements showing that the holder has permission to be in the UK and has the right to carry out the work in question.

All other documents, including both sides of the biometric residents permit, must be copied in full.

It is recommended that the date of copying is recorded on the copy. Each copy must be retained throughout the duration of the person’s employment and for two years post-termination.

Outcome of checksAn employer has the statutory excuse against a penalty where its checker has carried out steps 1 to 3 and satisfied themselves that the documents are genuine, relate to the holder and establish the right to work in the role. If it later emerges that a document was false, the statutory excuse still applies, and there will be no penalty, unless the falsehood would have been ‘reasonably apparent’ to a person untrained in identifying false documents.

In certain limited circumstances, the Home Office’s Employer Checking Service will verify an applicant’s right to work and must be contacted via an email request form.

Prospective employees should be given reasonable time to produce documents, but an employer must not allow employment to

14 Pre-employment checks: an employer’s guide

commence until they are received, checked and found to be satisfactory.

When presented with an apparently false document or document not relating to the holder during a pre-employment check, an employer should report the matter to the Home Office.

Avoiding racial discrimination in recruitmentPrevention of illegal working checks should be carried out in a non-discriminatory manner, avoiding any assumption about race, nationality or the right to work based on criteria other than the prescribed checks. A consistent approach should be applied to all applicants. The Government published a Code of Practice on avoiding racial discrimination in recruitment in 2008 [http://bit.ly/K1iXuk]. Breach of the Code is admissible in evidence before the employment tribunal.

Contractual considerationsOffers of employment should always be conditional on the candidate providing satisfactory evidence of the right to work in the role offered.

Public consultation on strengthening and simplifying the civil penalty schemeIn August 2013 the Government consulted on proposals intended to ‘strengthen and simplify’ the civil penalty regime [http://bit.ly/19OmXXX]. It published the results of the consultation in October 2013. Proposals include increasing penalties (the maximum penalty per illegal worker being doubled to £20,000), narrowing the circumstances in which a warning letter is issued in lieu of a penalty, and dispensing with annual re-checks in favour of re-checks linked to expiry dates. Some attempt to meet concerns raised by respondents is apparent in the Government’s published conclusions. Implementation of the changes is due in 2014.

(B) Criminal records checksAn employer may request a criminal records check processed through the Disclosure and Barring Service (DBS) as part of the recruitment process. These checks are designed to assist employers in making safer recruitment and licensing decisions.

General positionThe Rehabilitation of Offenders Act 1974 (ROA) sets out the principal position on the treatment of individuals with criminal records [http://bit.ly/

GMUZpp]. Subject to certain exceptions, a person who has been convicted of a criminal offence but who does not re-offend during a specified period from the date of conviction (the rehabilitation period) is considered to be rehabilitated and their conviction becomes ‘spent’. Unless one of the exceptions applies, they will be entitled to hold themselves out as having a clean record. It should be noted that during the rehabilitation period, the conviction is ‘unspent’ and should be disclosed in response to a request for details of the individual’s criminal record. The length of the rehabilitation period depends on the sentence imposed, not the nature of the offence. Prison sentences of more than two and a half years never become spent.

ExceptionsThe Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) (the Exceptions Order) [http://bit.ly/1achgUA] identifies the circumstances when a conviction will not be treated as spent, and must therefore be disclosed. These circumstances concern applications by an individual for an excepted occupation; to hold an excepted office; and to join an excepted profession. The Exceptions Order identifies the exceptions, which fall into five broad groups:

1 professions2 those employed to uphold the law3 certain regulated occupations4 those who work with children, provide care

services to vulnerable adults or who provide health services, and

5 those whose work means they could pose a risk to national security.

A person who falls into a category of the Excepted Order may be asked whether they have any spent and/or unspent convictions, known as asking ‘Exempted Questions’. These questions must be asked for the purpose of assessing the applicant’s suitability for employment, and at the time they are asked the individual must be informed that they are obliged to disclose spent convictions (article 3 of the Exceptions Order) [http://bit.ly/16T4rnb]. Unlike when dealing with individuals who do not fall within the Exceptions Order, when answering Exempted Questions, the applicant has a legal obligation to reveal spent convictions. Failure to answer or give truthful information is a valid reason to withhold employment, or to dismiss an individual.

15 Pre-employment checks: an employer’s guide

Those applicants who fall within the scope of the Exceptions Order qualify for checking through the DBS by means of a standard or enhanced DBS certificate (see below).

ProcessTo complete the criminal records checks, one option is for an employer to provide the applicant with a DBS application form to complete and return, along with documents proving identity. Once the check has been processed by the DBS and completed, the individual will receive a DBS certificate.

There is a provision for three levels of disclosure to be provided by certificate: (1) standard disclosure; (2) enhanced disclosure and (3) enhanced disclosure with list checks.

The standard check (£26) is available for certain specified occupations, licences and entry into certain specified professions. These are listed in the Exceptions Order. It contains details of all spent and unspent convictions, cautions, reprimands and final warnings from the Police National Computer.

The enhanced check (£44) is available for those carrying out certain activities or working in regulated activity with children or adults; applicants for gaming and lottery licences; and judicial appointments. These are listed in Part V of the Police Act 1997 [http://bit.ly/19BUmeu]. It contains the same Police National Computer information as the standard check, as well as a check of police records held locally.

An enhanced with list check (£44) is only available for those individuals who are in regulated activity and a small number of positions listed in Police Act regulations (for example, prospective adoptive parents). It contains the same Police National Computer information and check of police records held locally as an enhanced check, but in addition, will check against the children and/or adults barring lists.

It is important to note that criminal record check applicants must be 16 or over. Jobs that involve caring for, supervising or being in sole charge of children or adults require an enhanced DBS check. This includes checking whether someone is included on the two DBS ‘barred lists’ of individuals who are unsuitable for working with children and/or adults. Checks for eligible volunteers – anyone who is not being paid and/or

is not only looking after a close relative – are free of charge.

Alternatively, individuals can now join the Update Service, putting them in greater control of their information, allowing them to reuse the DBS certificates when applying for similar jobs. Individuals can choose to subscribe to the Update Service that the DBS has launched. This will keep their DBS certificate up to date, allowing it to be taken from role to role, once within the same workforce, with the same type and level of check. If an applicant has subscribed to the Update Service, their potential employer can go online (with the applicant’s consent), and carry out an instant, free check to ensure that the information released on the DBS certificate is current and up to date. There is no official expiry date for a criminal record check issued by DBS. Any information revealed on a DBS certificate will be accurate at the time the certificate was issued. An employer should check the date of issue on the certificate to decide whether to request a newer one.

Employers using the DBS checking service must comply with the code of practice. This code is issued under section 122(2) of the Police Act 1997 [http://bit.ly/1bJ6mwp] and is there to ensure that employers are aware of their obligations that the information released will be used fairly.

ChangeA Court of Appeal decision (R (T and Others) v Chief Constable of Greater Manchester [2013] EWCA Civ 25) held that the blanket disclosure of all convictions and cautions currently required was a disproportionate means of achieving the legitimate aim of protecting employers and, in particular, children and vulnerable adults in their care, thereby unjustifiably interfering with an individual’s right to respect for private life under Article 8 of the European Convention of Human Rights. The case is currently on appeal to the Supreme Court and is due to be heard on 9 and 10 December.

In the interim, the Exceptions Order 2013 [http://bit.ly/H1Goqo], which came into force on 29 May 2013, has the effect of no longer requiring certain ‘protected convictions’ and ‘protected cautions’ to be disclosed in a DBS certificate and employers can no longer ask questions about such convictions or cautions or rely on them to refuse employment or to dismiss an employee. A ‘protected conviction’ is:

16 Pre-employment checks: an employer’s guide

• one which does not relate to a ‘listed offence’, such as violent and sexual offences

• one which no custodial sentence was imposed• one where the individual has no other

convictions (where the individual has more than one conviction, all convictions will be included on the certificate)

• one which was received by a person aged under 18 at the time of the conviction and five and a half years or more have elapsed, and

• one which was received by a person aged 18 or over at the time of the conviction and 11 years or more have elapsed.

A ‘protected caution’ is a caution which:

• does not relate to a listed offence• was given to a person aged under 18 at the

time of the caution and two years or more have elapsed, and

• was given to a person aged 18 or over at the time of the caution and six years or more have elapsed.

(C) Pre-employment health checksSection 60(1) of the Equality Act 2010 (‘the EqA’) [http://bit.ly/19BFCGo] generally prohibits employers from asking applicants questions about their health before a job offer is made. It applies to any job recruitment process involving internal or external applicants and to selecting a pool of candidates who may be offered work in the future. This does not prevent employers selecting the best candidate for the job; instead, the aim of section 60 of the EqA is to ensure that the employment selection process is objectively made, on merit and ability to do the job. It prevents disability or health information being used to filter out applicants before they are given the opportunity to demonstrate they have the skills to perform the role.

The prohibition on asking questions about health applies to all potential employers and employment agencies. It applies at the point of entry to the organisation and relates to any questions, in any form, that are made before the job offer. Once an offer is made, it can be conditional on medical checks and health-related questions can then legitimately be asked.

Under section 60(6) of the EqA [http://bit.ly/19BFCGo], there are some exceptions to

the general rule, thereby allowing health- and disability-related questions to be asked pre-offer in the following limited circumstances:

• to establish whether an applicant can comply with a requirement to undergo an assessment or decide whether any reasonable adjustments need to be made to the assessment process for the applicant

• to decide whether an applicant can carry out a function that is intrinsic to the job

• to monitor diversity among applicants• to take positive action to assist disabled

people, and• to confirm that a candidate has the disability

where having that disability is an occupational requirement of the job.

EnforcementThe power to enforce the prohibition on disability and health questions lies with the Equality and Human Rights Commission. It has the power to investigate and serve notices on an employer. This is most likely to happen where persistent offenders are brought to its attention.

However, where a question is asked either deliberately or inadvertently about a candidate’s ability and an employer rejects a candidate because of the answer to, or failure to answer, the question, it is likely to be unlawful disability discrimination under the EqA. If the unsuccessful candidate claims direct disability discrimination, there will be a presumption of discrimination and the burden of proof will shift to the employer, who will then have to prove that there was a non-discriminatory reason for the failure to select the candidate, provided the candidate has a disability as defined in the EqA.

This is a general statement of the law as at October 2013. It should not be relied upon without first seeking separate legal advice.

This Appendix has been written by Joanne Owers and Matthew Davies, partners in the Employment and Immigration group at Fox Williams LLP, city lawyers. The group’s expertise is focused on the human side of enterprise, encompassing the range of legal issues in HR and throughout the employment lifecycle. They can be contacted on 020 7628 2000 or at jowers@foxwilliams.com and mdavies@foxwilliams.com

Issued: December 2013 Reference: 6426 © Chartered Institute of Personnel and Development 2013

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