Employers are experiencing more and more requests from their clients to ensure they have carried out certain types of background checks on their workforce. US companies starting up in the UK are used to carrying out background checks and expect to do the same when hiring UK staff.
This blog explores the types of checks employers can make on their workforce.
What kind of checks can employers make?
Employers should remember that information gathered, along with discussions about a candidate’s suitability, can be the subject of a data subject access request under the Data Protection Act 1998 (DPA).
Depending on the role in question, employers may want to undertake the following checks when recruiting:
- immigration status
- employment history
- education history
- credit checks
- criminal records
- social media checks
- medical or health checks
Verification and Vetting
By law, all UK employers must verify the identity and immigration status of all employees, (including overseas nationals) and are required to keep copies of relevant visas and work permits. There are criminal and civil sanctions for failure to do so. Education and employment history are looked into routinely for verification. There is a world of difference between verification and vetting.
Employers are not entitled to ask for any of the other checks as of right, and each of the other checks should only be requested if it is strictly relevant to the role and/or it can be justified by an identifiable risk to the company and/or its customers. These all come under the category of vetting.
In order to help employers comply with the DPA and to encourage good practice, the Information Commissioner’s Office (ICO) has provided the Employment Practices Code (the Code). The Code deals with the impact of data protection laws on the employment relationship and covers issues such as obtaining information about workers, the retention and disclosure of records and access to any such records.
The Code provides extensive ‘good practice’ recommendations with regard to the handling of applicants’ personal data at different stages of the recruitment process, including the advertising of the job vacancy and the handling of applications.
According to the Code, “vetting should only be used where there are particular and significantrisks involved to the employer, clients, customers or others and where there is no less intrusive and reasonably practicable alternative.”
Prospective employers should inform applicants that vetting will take place and what form it will take (e.g. social media, criminal history, credit check).
Vetting should be undertaken at as late a stage as is practicable in the recruitment process, (i.e. only once an applicant has been short-listed or has been conditionally appointed).
Employers may want to conduct a credit check against an applicant to check their financial background. The search should be proportionate. As such, it is more likely to be considered necessary and appropriate for an employer to perform a credit check against an applicant who is applying for a senior role involving financial duties (e.g. a financial director), as opposed to a junior role or a role which does not contain any financial responsibilities (e.g. an administrator).
Criminal Record Checks
Employers are not entitled to request information regarding an applicant’s criminal record without a reason for doing so. If there is a reason to ask a person to consent to criminal record checks, this must be handled with sensitivity. In the UK there are three tiers of criminal record requests carried out through the Disclosure and Barring Service and the criminal conviction certificate is the one most commonly sought. It will only disclose convictions which are not “spent.” Spent convictions should be ignored after a specified amount of time depending on the offence and sentence imposed.
For an employer to search social media as part of a background check on somebody carries risks (at the very least of upsetting the person being searched and possibly for an invasion of their private life), such a search should be proportionate and it should be borne in mind the information derived may not be accurate or complete.
The Employment Appeal Tribunal has previously held that any information an individual has made publicly available on the internet cannot reasonably be considered to be part of their private life.
What should employers do?
It is a good idea for employers to design their background check policy, detailing clearly what type of checks will be carried out in the recruitment process, and on an ongoing basis.
Employers should focus on proportionality of any searches carried out and should be transparent with applicants in respect of the vetting process. Proportionality will differ on a case-by-case basis, largely depending on the company’s business, the role and the responsibilities assigned to the role.