Employment Checks

Carrying out checks prior to appointment is a vital part of the recruitment process. There are a range of issues which can be addressed, not all of which will be appropriate in the circumstances. This section provides a summary of the types of checks that an organisation may undertake and looks at:

• Pre-employment medical assessments
• References
• Prevention of illegal working
• Criminal records

When to Carry Out Checks

Ideally, in most cases the checks should only be carried out once the person has been selected. This will involve less administration and will also help prevent breaches of the Data Protection Act and the Human Rights Act. It is also advisable to carry out the checks before making an offer. However, sometimes the employer may want to make an offer of employment before all the necessary checks have been carried out, to ensure that the candidate does not go elsewhere. In such cases an offer can be made but it should be made clear that it is conditional upon the satisfactory result of the checks and adherence to employment law.

There are some jobs where it is necessary to ensure that checks are carried out before the person starts work.

Pre-Employment Medical Assessments

Pre-employment medical checks should be seen as a way of:

• Screening candidates in - not screening them out.
• Identifying any risks to prospective employees, colleagues or clients.
• Identifying any support needed by the prospective employee to do the job effectively.
• Identifying any disability issues, such as potential reasonable adjustments.
• Identifying any potential attendance problems.
• Providing a base line of health for future reference.

The level of check can take various forms, from verifying the number of days' absence with the previous employer to requiring the employee to undergo a thorough medical examination. The type of check which is undertaken should depend upon the requirements of the job.

Checking Days Absence

In the reference request, the organisation should ask the previous employer to state the number of days' absence due to sickness the employee had when in their employment.

However, it will be necessary to justify using the number of days' absence as a criterion for selection if the absence arises from a disability.

Health Questionnaires

It may be helpful to require prospective employees to complete a health questionnaire which will highlight any cases which give rise to concern. Referrals can then be made to the GP or the organisation's occupational health adviser for further advice.

Care should be taken to ensure that disabled people are not referred simply because they have a disability. The reason for the referral must relate to the requirements of the job.

When developing a health questionnaire, consideration needs to be given to the questions that will be asked of the potential employee, how the information will be assessed and by whom, and confidentiality issues. There will also need to be clear guidelines as to when further information should be sought from the individual's GP or the occupational health adviser. Where authorities use occupational health advisers, it is suggested that the questionnaire is designed in consultation with them.

Medical Referral

When referring a potential employee to his or her GP or the authority's occupational health adviser, it is essential that the organisation provides detailed information on the requirements of the job, including the type of tasks that the individual will be expected to undertake. The organisation should also be clear about what information they are seeking from the medical expert. As well as advice on whether or not the potential employee is medically suitable for the job, the organisation should seek information on whether he or she has a disability and if so, whether any reasonable adjustments could be considered to enable him or her to be appointed to the job.

Medical Reports

As part of the medical referral process, the organisation or the occupational health adviser can obtain a medical report about the potential employee provided that they comply with the Access to Medical Reports Act.

The Access to Medical Reports Act states that a medical report is a report relating to the physical or mental health of the individual prepared by a medical practitioner who is or has been responsible for the clinical care of the individual. This will usually be the GP. A report by the organisation's occupational health adviser, or nominated independent doctor, after a one-off examination would not be covered where the doctor had not previously dealt with the applicant. However, in all cases the individual should be asked for their consent to the examination and the disclosure of the report to the organisation, to ensure compliance with the Data Protection Act.

The organisation must notify the individual that it intends to apply for a medical report and ask for their written consent. The organisation must inform the individual of their rights under the Access to Medical Reports Act:

• To withhold consent to the report being sought.
• To see the report before the organisation.
• To ask the medical practitioner to amend it. If the practitioner refuses to amend the report the individual can require him or her to attach a statement expressing the individual's views.
• To withhold consent to the report being supplied.
• To obtain the report from the practitioner up to 6 months after it was supplied.

Medical Examinations

An examination should only be carried out where it is necessary to determine the potential employee's suitability for the post, for example, to see whether he or she has sufficient physical strength to carry out the work. The potential employee should be informed of the reason for the examination and what is being looked for.

If a health check does reveal a condition which will mean that an employee will have difficulty carrying out any of the job duties and the condition could be considered to be a disability under the Disability Discrimination Act 1995, the organisation should consider whether a reasonable adjustment could be made.

Medical Examinations: Data Protection Act and Human Rights Act

Information about a person's health condition is sensitive data for Data Protection purposes. This means that an employer cannot process such information without complying with one of the conditions for processing sensitive data set out in the Data Protection Act. The Employment Practices Data Protection Code states that, provided an employer keeps and uses sickness records in a reasonable manner, it can rely on the condition that the processing is necessary in order to enable the employer to comply with a legal obligation associated with employment. This will obviously apply where an employer is recording sickness absence for SSP purposes. Some form of monitoring will also be necessary to comply with health and safety law e.g. to detect work-related absences. This condition can also be relied on for sickness absence management purposes because the employer in processing the information is doing so to comply with the legal obligation to only dismiss fairly.

The reasons why the information is required, what it will be used for and whom it may be disclosed to, for example, occupational health, should be provided to individuals.

Requiring a potential employee to complete a health questionnaire, or have a medical assessment, could be seen as an interference with a person's right to respect for their private life, and a breach of the Data Protection Act. Organisations should consider carefully whether they are necessary, in light of the job in question, and only relevant information should be obtained. The benefit to the employer should be balanced against the extent of the intrusion for the individual. Employers should consider whether other less intrusive ways of making the necessary checks, for example, using a questionnaire instead of requiring a full medical, would be appropriate.

References

Obtaining references is important as it will at the very least allow the accuracy of statements made by the applicant, such as dates of employment, position held, salary, attendance, time-keeping, disciplinary record and reason for leaving, to be verified. A previous employer may also provide an opinion on the employee's quantity and quality of work, reliability, honesty, potential and whether they would re-employ them.

The potential employee's permission must be obtained to contact referees, particularly the present employer. It can be helpful to follow up a reference request with a telephone call which may reveal more information. A record should be kept of salient points.

References: Data Protection Act

An exemption in the Act provides that a worker cannot require the organisation which wrote the reference to show it to him or her. However, there is no specific exemption where the reference is held by the organisation that requested it. However, the reference may contain information relating to a third party e.g. information which identifies the author of the reference. In these circumstances the employer cannot release the reference without the consent of the referee unless it is reasonable to do so. The Information Commissioner has set out detailed guidance in the Employment Practices Data Protection Code about the issues an employer should consider when deciding whether to release a reference when consent is not forthcoming.

The Code provides that the employer must decide whether, on balance, the worker's right to know what information is held about him or her and its source outweighs the right to privacy of the third party who can be identified through releasing the information.

One of the considerations is whether releasing the information would breach a duty of confidence owed by the employer to the third party. However, although the majority of referees would write a reference in confidence, the Commissioner states that it is hard to see how releasing factual information about the worker such as his or her sickness record or allegations which have been or ought to have been put to him or her by an employer would breach such a duty. Other factors to consider include what the third party was told when the information was requested about its possible release or, if told nothing, what the third party's reasonable expectations would be. The Commissioner states that those asked to give references should not be led to believe, and cannot expect, that their references will be kept confidential in all circumstances. They may, for example, have to be released under disclosures procedures in the event of a claim of unlawful discrimination.

Other issues which should be taken into account include:

• The impact that the information has had, or might have in the future, on action or decisions affecting the worker.
• Whether the information includes facts which the worker ought to be made aware of because he or she might dispute them.
• Whether the third party has expressly refused consent to the release of the information, and the reasons given, if any.
• Whether the information identifies the third party in a business or personal capacity. When considering the release of a reference the third party's right to privacy is greater if he or she is the author of a personal reference rather than a corporate one.

In summary, the Commissioner believes that an employment reference received by an employer should normally be released to the worker unless the referee provides some compelling reason as to why it should be edited or not released at all.

Prevention of illegal working

Asylum and Immigration Act

Since 27 January 1997 it has been a criminal offence, with a fine of up to £5000, to employ someone who is not entitled to work in the UK. This does not apply to those employees who started work before this date. Employers will have a defence if they have requested and kept a copy of one of a number of documents which show that a person is entitled to work in the UK. However, this defence will not be available if it can be shown that the employer knew that the person was not entitled to work when he or she was taken on.

For the vast majority of potential employees, requesting a documented National Insurance number should be sufficient. This is a document issued by a previous employer, the Inland Revenue, the Benefits Agency or the Employment Service. The document should appear to be an original and relate to the person in question. A document showing a temporary NI number is not satisfactory. However, there are a number of other documents that can be requested if the employee cannot provide a NI number.

Work permits

An employer can apply for a work permit to employ a person who is not entitled to work in the UK. Individuals cannot apply on their own behalf.

To obtain a permit, the role must be such that an employer would require the employee to have either one of the following qualifications:

• (a) a UK equivalent degree level qualification; or
• (b) a HND level qualification which is relevant to the job; or
• (c) a HND level qualification, which is not relevant to the job, plus one year of relevant work experience.

Or the following skills:

• 3 years' experience of using specialist skills acquired by doing the type of job for which the permit is sought. The job should be at National/Scottish Vocational Qualification level 3 or above.
• The employee concerned must also have the above level of skill/qualifications.

To obtain a work permit an employer would have to show that they had made reasonable attempts to find a suitably qualified 'resident worker' or one who, with extra training, could do the job. This will normally involve advertising the post in a national newspaper or a professional journal which is available within the European Economic Area (EEA). The reasons why any applicants were rejected will also have to be provided. A resident worker is a national of an EEA member state or has settled status within the meaning of the Immigration Act 1971.

Applications must be made on the WP1 application form no more than 6 months before the employment is due to start. The application form, plus comprehensive guidance notes, can be downloaded from the Home Office website.

There are two categories of application - Tier 1 and Tier 2.
The Tier 2 application will be appropriate in most cases. However, for 'shortage occupations' - where an occupation has been identified as being in acute short supply both nationally and within the EEA, the Tier 1 application can be used. For this category of applicant it will not be necessary to provide evidence that the post was advertised.

Criminal records

The following is an overview of the provisions in relation to the checking of criminal records. It covers both the provisions of the Rehabilitation of Offenders Act 1974 and the system of checking criminal records through the Criminal Records Bureau (CRB).

The Rehabilitation of Offenders Act 1974 (ROA)
The ROA provides that, generally speaking, it will be unlawful to take into account 'spent convictions' in recruitment, promotion and dismissal situations. The Act sets out rehabilitation periods, after which a conviction becomes spent. The effect of this is that if a question is put to a person about previous convictions it can be treated as though it does not refer to spent convictions. Also, the fact that an individual has a spent conviction or fails to disclose such a conviction shall not be proper grounds for dismissal.