Are you checking out potential employees?

Added On: 28th September 2010

Are you checking out potential employees?

Some checks that must be carried in order to comply with the law, such as checking eligibility to work in the UK, and/or to work with children and vulnerable adults. Other checks should be carried out to ensure that people selected for employment are suitably qualified, and are appropriate to work in the identified role. As a basic requirement, employers should take up references to identify any potential issues with an employee.

The information below gives a basic outline on some of the key checks that should be carried out – dependant on the position in question.

Organisations need to ensure particular care is taken when recruiting people to work with children and vulnerable adults. In recent years, the government has taken steps to progressively tighten up the law in this area. It was decided to establish a new organisation called the Independent Safeguarding Authority to oversee a new scheme known as the Vetting and Barring Scheme. However, it was announced on 15 June 2010 that the scheme would be 'halted' pending a review. There is still a requirement to carry out a Criminal Records Bureau (CRB) (or Disclosure Scotland or Access Northern Ireland for those areas) check for all those who are applying to work with children or vulnerable adults.

Information available includes ‘standard’ or ‘enhanced’ disclosures, where the job meets the relevant criteria.

Standard disclosure:

This is appropriate for jobs that involve regular contact with children and vulnerable adults. It contains details of both spent and unspent convictions, as well as cautions, reprimands and final warning held on the Police National Computer. Lists held by government departments of those banned from working with vulnerable groups are also searched.

Enhanced disclosure:

This applies to jobs involving greater contact with children or vulnerable adults (for example jobs involving caring for, supervising, training or being in sole charge of children or vulnerable adults). It contains the same information as standard disclosure but also include non-conviction information from local police records if thought to be relevant to the post applied for. Until the new databases being established under the Vetting and Barring Scheme (see above) are available, employers will need to continue with enhanced disclosure checks.

Adverse information contained in a disclosure should not necessarily act as a bar to employment. The disclosure may contain details of spent convictions irrelevant to employment with children or vulnerable adults, and care must be taken not to treat an adverse entry on a disclosure as an automatic bar to employment.

Recruiting ex-offenders

Under the Rehabilitation of Offenders Act 1974 (ROA), any conviction for a criminal offence can be regarded as spent provided:

  • the conviction did not carry a sentence excluded from the Act, such as a custodial sentence of over two and a half years
  • no further convictions occurred within the rehabilitation period.

A conviction is not ‘spent’ until the rehabilitation period is complete. Once it is ‘spent’, the rehabilitated person does not have to reveal its existence in most circumstances and can answer ‘no’ to the question ‘do you have a criminal record?’ Certain occupations are excepted – these are listed in Rehabilitation of Offenders (Exceptions) Orders. Custodial sentences of over two and a half years are never considered spent.

It is an offence under this law for anyone who has access to criminal records to disclose information about spent convictions unless officially authorised. It is also a serious offence to obtain information about spent convictions by means of fraud, dishonesty or bribe.

Any assessment of criminal records must:
  • always be based on confidentiality and discretion
  • encourage applicant honesty by stating that applicants will be considered on merit and ability
  • not include requests for spent conviction records unless the job is exempt under the terms of the ROA
  • advise applicants to submit confidential records separately from the usual application form and to a named employee
  • comply with data protection law
  • ensure access to criminal record information is only on a need-to-know basis.

Employers should:
  • agree policies on access to criminal records
  • inform successful applicants of this policy
  • explain to employees the various reasons to give a fair chance of employment to people with criminal records
  • review insurance arrangements and consider fidelity guarantee schemes.

Eligibility to work in the UK

In 2008 a points based system was introduced in the UK for the recruitment of employees from overseas. When recruiting from overseas under this system, an employer must be registered as a sponsor and is responsible for checking eligibility to work in the UK. Employers who do not carry out the appropriate checks face potential penalties including significant fines.

The role of references

A crucial part of the pre-employment checking process is the taking of references. Employers should establish controls regarding the provision and approval of references. In many organisations, it is customary for the HR function to process and vet all references given. References should be fair, accurate and not give a misleading overall impression of the employee, and all data given in a reference should be based on fact or capable of independent verification. References should not collect any subjective information as to the applicant’s suitability for the job on offer.

More information on how we can help with the recruitment and selection process can be found here:

Recruitment and Selection