Pre-employment checks

preemployment

Overview

Your completed application form, job interview, assessment center and psychometric testing are the beginning of the sifting process in recruitment. After you have passed these initial tests, your prospective Employer will go through some more vetting procedures to make sure that you are suitable for the job. Most of these processes are bound by law and include;

  • Job References
  • Questions about your criminal record, and Disclosure and Barring Service (DBS) checks for some jobs
  • Immigration status
  • Health

 

 

Job References

A request for a reference from an Employer can come from you, a prospective Employer or a third party such as a bank or a landlord. Your Employer does not have to give you a reference unless there is an agreement to do so under a Settlement Agreement or a COT3. If your Employer is regulated by the Financial Conduct Authority or the Prudential Regulation Authority, they must provide a reference if you are an “approved person” and your new job involves the performance of an approved function. On 7 March 2016, the Approved Persons Regime will be replaced by the Senior Managers Regime and the Certification Regime. For more on this see Employee Rescue advice on Job references in the financial sector and for approved persons.  Once your Employer chooses to give you a reference then they must take account of the law and their obligations to provide a fair and truthful reference.

See: How to deal with bad or inaccurate job references

 

 

 

Criminal Record Checks

Employers can request information about the criminal record of a job applicant by asking questions or getting confirmation through a certificate from the Disclosure and Barring Service (DBS). The level of DBS check will depend on the position you are applying for. Normally, as a job applicant, you have no legal obligation to reveal spent convictions. There are certain areas of employment that are exempt under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. Here, Employers can ask about spent convictions. This is called “asking an exempted question”. You have a legal obligation to reveal spent convictions if applying for exempt employment. The minimum age at which someone can be asked to apply for a criminal record check is 16. If you have a conviction that has become spent, your Employer must treat you as if the conviction had never happened. Refusing to employ a person because of a spent conviction, is unlawful under the Rehabilitation of Offenders Act 1974.

See: Working or finding a job with a criminal record and The Disclosure and Barring Service

 

 

Immigration Status

All Employers must check that prospective Employees have the right to work in the United Kingdom. If they do not carry out these required checks and recruit someone who does not have the right to work in this country, that Employer may be fined up to £20,000. Knowingly recruiting workers who do not have the right to work in the UK is a criminal offence carrying an unlimited fine and/or imprisonment.

Employers must not carry out these checks in a discriminatory way. The Home Office has published a Code of practice for Employers: Avoiding unlawful discrimination while preventing illegal working to guide Employers on how to avoid unlawful discrimination while preventing illegal working. The code has been issued under section 23(1) of the Immigration, Asylum and Nationality Act 2006 and applies where employment commenced on or after 6 April 2014.

 

The right to work in the UK

British citizens and people with settled status have an unconditional right to work in the UK.

Citizens of the European Economic Area (EEA) and Switzerland (except for Croatia, see below) have the right to free movement within the EEA and the UK. This means that they can work for Employers, be self-employed or establish a business in the UK.

Croatians have restrictions on employment under a worker authorisation scheme until at least 30 June 2018.

People from countries that do not belong to the EEA (except for Swiss nationals and Commonwealth citizens with a right of abode) do not have a right to enter the UK, but can do so with the appropriate visa.

 

Checks that an Employer must make

Employers must carry out the following checks under Article 3(1)(a) and 4(1)(a) of the Immigration (Restrictions on Employment) Order 2007 before the employment starts. Employees transferring to a new Employer under the TUPE Regulations 2006 must also be checked within 60 days.

Employers must;

  1. check listed documents. The prospective Employee must produce one or more document(s), from a selection contained in two statutory lists. There are two lists of documents Schedule List A and Schedule List B. Schedule List A documents are those that prove that the prospective Employee has an unfettered right to work in the UK such as a passport showing that the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom. Schedule List B is split into two parts and the documents required are those with evidence of a limited right to work in the UK.
  2. make sure that the document is valid
  3. retain a record of the date on which the check was made
  4. make sure that any photograph in it is of the Employee
  5. make sure that any date of birth declared in it is consistent with the Employee’s appearance
  6. take reasonable steps to make sure that the Employee is the rightful owner of the document
  7. retain a copy of the document for a period of not less than two years after the employment ended
  8. hold a copy of the document in a format which cannot be altered. That copy must be of the whole document, except in the case of passports where the copy must include any page(s) which contain:
  • the holder’s personal details, including nationality
  • the holder’s photograph
  • the holder’s signature
  • the date of expiry
  • information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question

9. obtain and retain a copy of evidence setting out the term and vacation dates for the course they are taking in the case of students

 

Health checks

Section 60 of the Equality Act 2010 (EqA 2010) prohibits Employers from asking about the health or disability of an applicant before making a job offer. The prohibition applies to asking such questions on the application form, during the application process or during the job interview. Questions about previous sickness absence are questions that relate to disability or health and are also prohibited. Employers can make job offers conditional on satisfactory health checks. So, Employers can ask questions related to health and ask for medical reports once a job has been offered. This means that Employers should not ask applicants to complete medical questionnaires at an early stage of the recruitment process – and should certainly not be asking OH professionals to get involved in assessing an Employee’s health or fitness until a job offer has been made, other than where a specific exception applies.

This means that an Employer cannot refer you for health checks before they make a job offer, except in the following circumstances;

  • Where the Employer has to make reasonable adjustments for the recruitment process – section 60(6)(a) EqA 2010
  • Monitoring diversity – section 60(6)(c) EqA 2010
  • Implementing positive action measures such as the guaranteed interview scheme for disabled applicants – section 60(6)(d) EqA 2010
  • Occupational requirements such as where the job requires a person with a particular impairment – section 60(6)(e) EqA 2010
  • Where there is a requirement to vet applicants for national security – section 60(14) EqA 2010
  • Where the question is about an applicant’s ability to carry out a function that is intrinsic to that job – section 60(6)(b) EqA 2010

 

Best of the web

GOV.UK – Checks Employers can make on job applicants

TUC workSMART –    Application Forms

Job Interviews

Psychometric Tests

GOV.UK –    Check a job applicant’s right to work documents

Check if someone can work in the UK

An Employers Guide to right to work checks

Home Office – Right to work checklist

Citizens Advice – Medical checks before offering a job

Equality & Human Rights Commission – Equality Act 2010: A quick start guide to the ban on questions about health and disability during recruitment

                                                         Pre-employment health questions: Guidance for employers on Section 60 of the Equality Act 2010

 

Disclaimer

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this publication.

Further specialist advice should be taken before relying on the contents of this publication. You can send an e-mail to thelawyers@employeerescue.co.uk for such specialist advice if required.

Case Study

In the Scottish case of Collins v First Quench Retailing Ltd [2003], Ms Jacqueline Collins was awarded £179,000 from her employers when the off-license she managed was robbed. Ms Collins had been the manager of Victoria Wine, run by First Quench Retailing, for about ten years. When Mrs Collins started in the shop she had been concerned about security and raised this with management. Since 1977 there had been 13 reported crimes at the shop, including five thefts, one minor assault, one serious assault and one assault with intent to rob. There were two armed robberies in 1994 and four... Read More
Ms Jacqueline Collins was awarded £179,000 from her employers when the off-license she managed was robbed.Collins v First Quench Retailing Ltd
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