New Hires: An Employers Guide
Some checks, whilst advisable, are optional, for example, checking a potential employee’s qualifications or references. Other checks are a legal requirement. For example, you are required to ensure that all your workers are entitled to be in the UK and take up the job in question.
Pre-employment checks are an important part of the recruitment process. They help you to:
- comply with the law by ensuring the employee has permission to work and remain in the UK and has not been barred from carrying out the job;
- check that the potential employee is suitably qualified or skilled for the job;
- assess whether the potential employee is suitable for the job e.g. for roles working with vulnerable groups or security roles; and
- check that the employee is physically able to carry out the job.
Here’s an overview of what’s required:
Right to work in the UK – LEGAL REQUIREMENT
Employers ALWAYS need to make sure new employees can work in the UK. So, what does this mean?
You can employ the following people without restriction:
- British citizens;
- Commonwealth citizens with the right of abode;
- nationals from European Economic Area (EEA) countries and Switzerland (including Romanian and Bulgarian nationals);
- family members of EEA and Swiss adults, providing the adult is lawfully residing in the UK; and
- nationals from the Common Travel Area.
You should still check the right to work in the UK of any potential employee claiming the right to work under one of these categories.
There are hefty fines in place if this doesn’t happen. An employer can be fined up to £20,000 if they can’t show evidence that they checked an employee’s right to work in the UK, as well as face prison sentences.
An employer may request a criminal records check processed through the Disclosure and Barring Service (DBS) as part of its recruitment process.
You can only check someone’s criminal record if they apply for certain roles, for example if they’ll be working with children, vulnerable adults or in healthcare.
For certain roles, the check will also include information held on the DBS children and adults’ barred lists, together with any information held by police forces that is reasonably considered to be relevant to the applied for post.
These checks are to assist employers in making safer recruitment and licensing decisions. However, a check is just one part of robust recruitment practice. When a check has been processed by the DBS and completed the applicant will receive a DBS certificate (DBS check).
The DBS can’t access criminal records held overseas. A DBS check may not provide a complete view of an applicant’s criminal record if they have lived outside the UK.
Unless you’re eligible to check someone’s criminal record for a job, it’s against the law to refuse to employ them because of ‘spent convictions’.
Employers should include information about any checks in their offer letter, and get written consent before asking for a report from a candidate’s doctor. Candidates can demand to see the report, and ask for it to be changed or withheld from the employer.
Employers must make sure checks don’t discriminate (for example by targeting them at certain age groups only) or discourage people from applying for the job.
An employer who discriminates against a candidate because of a disability that doesn’t stop them from doing the job can be prosecuted.
Employers can only ask successful candidates for a health check before hiring someone if:
- It’s a legal requirement, for example eye tests for commercial vehicle drivers; and/or
- If the job requires it, for example because their insurers need health checks on cycle couriers.
Proof of qualifications
Some employers may require qualifications to be checked prior to commencement of employment. For example, roles within the health care industry / NHS requires professional qualifications to be verified prior to commencement of employment.
- request that applicants provide original documentation;
- check that all certificates are genuine and relate to a real qualification;
- check that details on certificates match the information provided by the candidate on their application form;
- contact the awarding body directly, wherever possible, to confirm the applicant’s attendance, course details and grade awarded. Employers will be required to provide a copy of the applicant’s written consent to obtain any such information; and
- retain a copy of all documents (scanned or photocopied).
Although it’s not compulsory, it is always advisable to check a potential employee’s references.
You can do this in writing or by telephone at any point during the recruitment process. Some candidates will prefer you not to check their references until they have been offered the job, and you must have their permission before any referees are contacted.
The easiest way to obtain references is in writing. You could ask:
- length of service;
- job title and main duties;
- sickness absence details;
- whether they were subject to disciplinary action;
- whether they were reliable, honest and hardworking; and/or
- if there are any reasons why they should not be employed.
Checking documents prior to employment
Some employers carry out as many checks as possible before offering a job. This will offer reassurance that an employee is suitable before a job offer is made, and can also speed up the time it takes to get an employee to start work, but it can come at a financial and administrative cost.
It is important to ensure that sufficient time is factored into the recruitment process to allow for checking of documentation to avoid any unnecessary delays in the recruitment process.
Applicants may not always have the original documentation. In such cases employers will need to make an appropriate risk-based assessment.
Remember you can make any job offer conditional on the outcome of pre-employment checks.
Withdrawing job offers where the above checks are not satisfactory
No contract of employment exists until a candidate has accepted an offer and all conditions under which the offer was made have been satisfied.
You can withdraw conditional job offers made subject to suitable references and criminal records checks, where the results are not as you expected.
If a candidate starts work before the results of checks have been received, you should make it clear that the offer may be withdrawn if the checks prove unsatisfactory.
Data protection issues
The Data Protection Act 1998 applies to personal information.
There are eight data protection principles. Information should be:
- processed fairly and lawfully;
- processed for one or more specified and lawful purposes, and not further processed in any way that is incompatible with these purposes;
- adequate, relevant and not excessive;
- accurate and where necessary up to date;
- kept for no longer than is necessary for the purpose for which it is being used;
- processed in line with the rights of individuals;
- kept secure with appropriate technical and organisational measures taken to protect the information; and/or
- not transferred outside the European Economic Area (the European Union member states plus Norway, Iceland and Liechtenstein), unless there is adequate protection for the personal information being transferred.
Any information you gather in the process of making your pre-employment checks must be kept securely and confidentially. The candidate has the right to ask to see any information you hold on them which you must supply within 40 days of receiving the request. You can charge a fee of up to £10 for providing the information.
We can help you design a pre-employment checklist to make sure you have all the necessary areas covered, as well as make sure your offer letters cover you in making conditional offers of employment based on successful relevant checks.