“We need to run a background check on a new employee. What information are we entitled to access and are there procedures that we have to follow?” Ranjit Dhindsa, partner at international law firm Reed Smith, explains the employer’s legal obligations.

As part of the recruitment process, employers often run background checks in various forms, usually with the offer of employment being conditional on a satisfactory result. Employers should be aware of what checks they are entitled to carry out on potential employees, and what checks they are obliged to carry out.

Before undertaking any checks, however, employers need to be clear about their obligations under the Data Protection Act. Guidance issued by the Information Commissioner’s Office sets out basic principles for the recruitment process:

• Checks should be carried out as late as possible in the process, preferably only on those candidates which have been selected, rather than for either all applicants or those who have been shortlisted for a role.
• Checks should only be carried out where particular information is necessary for a particular role; never in order to “fish” for information.
• Employers should inform candidates that they will be carrying out checks and what they will consist of.
• Consent should be obtained from candidates before carrying out checks, usually by signing a consent form.
• Information obtained should not be kept for longer than necessary.

In addition, certain information about individuals will be classed as “sensitive personal information” and is subject to particular rules about its handling. This includes information regarding race or ethnicity, religious beliefs, physical or mental health, sexual orientation and criminal offences.

We now take a look at some of more common types of checks employers might carry out, and the rules surrounding them.

Immigration

It is vital that employers carry out immigration checks as a matter of course. If a company knowingly employs someone who does not have permission to work in the UK, they may be subject to criminal charges. If a company checks that individual’s documentary evidence of such permission, for example a UK passport, this will act as a defence to any criminal proceedings.

There will also be introduced in the near future a civil penalty of up to £2000 for employers who employ someone who does not have permission to work in the UK, regardless of whether the employer knew of their status or not. There will be prescribed requirements which, if followed, will protect the employer from liability.

Employers should be careful that they carry out the same checks on nationality for all potential employees, not simply those who appear to be of non-UK origin, or they could put themselves at risk of claims of racial or ethnic discrimination.

Criminal Records

Under the Rehabilitation of Offenders Act 1974 individuals are not obliged to disclose spent convictions, and it is illegal to discriminate on the basis of them. However, for certain exempted types of position, such as solicitors and barristers, nurses, those working with children or vulnerable adults, and “approved persons” under the Financial Services Authority rules, employers are required by law to obtain information from the Criminal Records Bureau (CRB) on past convictions including those which are spent.

To obtain a disclosure from the CRB including spent convictions, both applicant and employer must sign the relevant forms, meaning that these cannot be obtained without the subject’s permission.

Employers outside the exempted types of employment can still request that applicants obtain a “basic disclosure” from the CRB which will contain records of unspent convictions.

However, it is illegal under the Data Protection Act to force a prospective employee to obtain such records by making the offer of employment conditional on it, and so applicants are entirely within their rights to refuse to do so without prejudicing their application. In any case employers should only request such information if it is necessary for the particular role in question.

References

Offers of employment are often made subject to the receipt of satisfactory references. These are usually from previous employers, although academic or personal references are sometimes used.

Previous employers are not obliged to provide references for their former employees, but employers should be aware that if they refuse to do so, they may put themselves at risk of a discrimination claim even though they are no longer that person’s employer.

Conversely, if a former employer does give a reference, they should be careful that the contents do not expose them to possible claims of defamation or discrimination on the part of the former employee, or negligent misstatement on the part of the new employer.

Employers are not, however, bound to provide a full reference, and so many will simply provide factual references, covering an employee’s dates of employment, position, requirements of their role, etc. This means that the usefulness of references as a means of ascertaining an employee’s suitability is likely to decline as ex-employers minimise their legal risks.

Medical Checks

Employers may wish to obtain either a medical examination, report or records. This may be related to specific requirements of the job, for example eyesight tests for positions involving driving. Alternatively, employers’ healthcare schemes often require medical information.
Employers seeking reports from a candidate’s own doctor will need the candidate’s consent, and candidates will have the right to see any report obtained from any medical practitioner.

Employers should keep in mind the possibility of claims for disability discrimination. Any requests for medical information should be either part of the employer’s general policy, or justifiable on the basis of the requirements of the particular role.

Pre-employment checks are subject to a diverse range of rules and regulations, as well as the overarching obligations under Data Protection legislation. Employers should, therefore, ensure they are fully aware of their rights and obligations regarding the collection of information during the recruitment process.

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For more information, please contact Ranjit Dhindsa at rdhindsa@reedsmith.com