Commonly asked questions on the legal issues relating to recruitment and selection
Pre-employment checks are designed to minimise the risk of employing the wrong person. They're a crucial step in the recruitment process, reducing the risk of hiring employees who might cause difficulties for the organisation, its employees, customers and suppliers. For this reason, employers need to exercise due diligence in all cases, conducting pre-employment checks in a legal, ethical manner that consistently values fact over opinion.
This factsheet looks at the risks employers need to guard against in the recruitment process, many of which vary across different sectors and companies. The factsheet examines the UK legal requirements placed on recruiters when it comes to employing foreign nationals, criminal records checks and pre-employment health checks. References are a cornerstone of the vetting process, and as such are examined in this factsheet, which also draws our attention to the increasing number of employers using social media to research candidates’ backgrounds. Finally, the factsheet considers the role of outsourcing and employment agencies in pre-employment checks.
Conducting pre-employment checks on job applicants should be an integral part of the recruitment process and appropriate for the job in question. Careless approaches to vetting risk employing the wrong people, with resultant damage in terms of increased turnover and costs, and lower morale. They also risk legal challenge, which can undermine an employer’s reputation.
There are important social and business arguments for employing people in responsible balanced ways that maintain a duty of care to employees and customers, protect business interests and give access to the widest pool of talent. We encourage employers to make objective assessments, to adopt an open mind and to focus on merit and ability to do the job. Blanket exclusion policies should be avoided. If there’s an issue of criminal records, then the nature and relevance of offences and extenuating circumstances should be considered, along with the potential risks involved and if and how these could be sensibly and effectively managed.
All employers have a common law duty to provide a safe working environment. Organisations with a legal obligation to protect vulnerable customer and client groups, such as children in care, from people who’ve committed serious offences should be particularly vigilant about risk management.
What is the role of pre-employment checking?
Conducting pre-employment checks on job applicants (sometimes referred to as ‘vetting’) is an integral part of the recruitment process in the UK. Once an employer has selected someone suitable for a role, they need to find out if applicants might bring the organisation into disrepute, or cause difficulties with colleagues, managers, customers or suppliers. Failure to establish relevant information could mean that HR has not shown ‘due diligence’.
There is increasing public recognition of the need for employers to adopt practices that are both legal and ethical. In conducting pre-employment checks, employers should seek to:
- ensure non-discrimination and compliance with data protection law
- rely on fact, not opinion
- ensure relevance to the post to be filled
- understand the candidate thoroughly
- be transparent and open to candidates about the checking process.
Our guidance Pre-employment checks: an employer's guide elaborates on the issues covered in this factsheet and provides more detailed advice to employers on how to conduct checks before employing an individual in a way that will support business objectives. CIPD members can see our Recruitment and selection law Q&As.
What risks do employers need to guard against?
Specific risks to be guarded against through conducting pre-employment checks will vary depending upon the employer, the country and sector where they are based. For example, in the UK:
- In the retail sector, theft by employees is not infrequent and employers will want to satisfy themselves that job applicants are honest.
- The NHS Employment Check Standards, issued by NHS Employers, outline the employment checks employers must carry out before appointing staff into NHS positions, across England. Failure to comply could potentially put the safety, and possibly the lives, of patients, staff and the public at risk.
- In the financial services sector, there is a Financial Conduct Authority (FCA) regime for the individual approval of individuals who carry on certain controlled functions within an authorised firm.
- The Code of Practice Security screening of individuals employed in a security environment requires such individuals to have undergone a financial background check.
Specific checks required may include individuals’ background in areas other than employment, including for example, identity, driver’s licence, address, media and credit checks.
Specific legal requirements on recruiters
There are a number of areas where UK law imposes specific requirements on recruiters. A detailed outline of the law in the following areas is contained in the appendix to our Pre-employment checks: an employer’s guide.
The right to work in the UK
Employers are subject to statutory penalties for employing foreign nationals who do not have lawful permission to work in the UK. Employers are responsible for checking and copying a job applicant's 'right to work' original documents to verify their eligibility to work in the UK. Employers who do not carry out the appropriate checks face potential penalties including significant fines. Find out more in our factsheet on employing overseas workers in the UK.
Criminal records checks
A UK employer may request a criminal records check as part of the recruitment process. These checks are designed to assist employers in making safer recruitment and licensing decisions.
Organisations should develop policies on employing people with criminal records and make appropriate changes to their recruitment and employment practices. This includes assessing and managing risk and implementing safeguards. To help employers understand the law around recruiting ex-offenders and develop more inclusive policies and processes, we published Recruiting safely and fairly: a practical guide to employing ex-offenders with Nacro, the crime reduction charity.
Employers need to ensure particular rigour and vigilance when recruiting people to work in regulated activities with children or those in vulnerable groups. The Disclosure & Barring Service can carry out three levels of checks on employees: basic, standard and enhanced. The DBS can also give guidance on criminal records checks for overseas applicants from 63 countries.
Details of the Scheme in Northern Ireland are available from AccessNI. In February 2011 Scotland introduced its own scheme, the Protecting Vulnerable Groups (PVG) Scheme. Information on the PVG Scheme is available from Disclosure Scotland.
Pre-employment health checks
Section 60(1) of the Equality Act 2010 generally prohibits employers from asking applicants questions about their health before a job offer is made apart from questions relating to an essential aspect of the role. This does not affect the employer's responsibility to make reasonable adjustments for disabled job applicants to overcome the disadvantages they may experience during the recruitment process or whether the applicant can perform the role if reasonable adjustments were made. See more in our occupational health factsheet.
The role of references
A crucial part of the pre-employment checking process is taking references. In many organisations, it is customary for the HR function to process and vet all references given. Where necessary, employers should obtain legal advice to prevent problems arising.
Case law has resulted in a cautious approach from people giving references. Good practice suggests:
- Employers should ensure that references they supply are true, accurate and fair.
- References should offer facts, not opinions.
- References should mention negative issues, such as gross misconduct or events giving rise to a disciplinary process, in a way which is accurate and correct.
Most companies will request written (or emailed) references, either in the form of an ‘open’ unstructured letter or by use of a standard form. Requesting written references provides referees with more time to reflect on the wording of answers and on the information (if any) provided about the job vacancy. Reference requests should be marked ‘private and confidential’ for the attention of the named referee.
Telephone can be a faster way of obtaining a reference. Taking up oral references requires interviewing skills, time and resources (frequently reserved for senior/key posts). However, it is more difficult to be sure that the relevant person is actually providing the reference. and it is vital that employers make accurate records of any verbal telephone references given or received.
Using social media to support recruitment
There has been a marked increase in the proportion of employers making use of social media to research candidates’ backgrounds. Using a search engine or social media in this way is not necessarily unlawful. However, it is important to balance employers’ interests with those of individual applicants, and employers should be cautious about the way in which they approach such searches.
CIPD members can see more information in our law Q&A on using social media in the recruitment process and in our Q&As on data protection law and disability discrimination law.
Circulating lists of high-risk candidates
The Scottish Affairs Select Committee has strongly criticised blacklisting of workers in the construction sector, despite this practice having been made illegal in 2010. CIPD members can see more information in our law Q&A on blacklisting of trade union members.
However, there may be cases, particularly where the employer owes a duty of care to vulnerable people such as within the healthcare sector, where the duty of care to patients is of overwhelming significance, it may be legitimate to share information about employees where there is evidence of the kind of misbehaviour that would put patient safety at risk.
Outsourcing and employment agencies
Our surveys suggest that half of all employers see recruitment agencies as an effective method of attracting candidates. Particular issues in relation to pre-employment checks can arise, not only for employers who use employment agencies, but more generally in managing the supply chain. Some companies offer an employee vetting service independent of labour supply, whereby they are engaged at the offer stage and the candidate supplies personal details to be checked by the third party on behalf of the employer. HR and recruitment consultants may also act as intermediaries, for example by supplying vetting specialists to sit alongside employers’ payroll teams.
Employers should choose a reputable agency that takes steps to protect its own reputation, and agree what specific pre-employment checks are necessary and appropriate, ensuring that these are non-discriminatory and relevant to the job(s) to be carried out.
Useful contacts and further reading
BROUGHTON, A., FOLEY, B. and LEDERMAIER, S. (2013) The use of social media in the recruitment process. Research paper. London: Acas.
DEPARTMENT FOR BUSINESS, INNOVATION AND SKILLS. (2015) The impacts of migrant workers on UK businesses. BIS Research Paper 217. London: BIS.
NATIONAL ASSOCIATION FOR THE CARE AND RESETTLEMENT OF OFFENDERS. (2015) Recruiting fairly and safely: a practical guide to employing ex-offenders. London: NACRO.
Visit the CIPD Store to see all our priced publications currently in print.
CHAUHAN, R.S., BUCKLEY, M.R. and HARVEY, M.G. (2013) Facebook and personnel selection: what's the big deal?Organizational Dynamics. Vol 42, No 2, April-June. pp126-134.
ORNSTEIN, D. (2012) Treading a fine line. Tolley’s Employment Law Newsletter. Vol 17, No 9, March.
RAZEEN, N. (2015) The perils for employers who employ illegal workers. Tolley's Employment Law Newsletter. Vol 20, No 6, April. pp46-47.
Rehabilitation of offenders. (2014) IDS Employment Law Brief. No 993, March. pp15-18.
Safeguarding and employment law. (2015) IDS Employment Law Brief HR. No 1021, May. pp13-19.
CIPD members can use our online journals to find articles from over 300 journal titles relevant to HR.
Members and People Management subscribers can see articles on the People Management website.
This factsheet was last updated by Lisa Ayling, solicitor and employment law specialist, and by Ben Wilmott.
Ben Willmott: Head of Public Policy
Ben leads the CIPD’s Public Policy team, which works to inform and shape debate, government policy and legislation in order to enable higher performance at work and better pathways into work for those seeking employment. His particular research and policy areas of interest include employment relations, employee engagement and well-being, absence and stress management, and leadership and management capability.
Ben joined the CIPD in 2003. He started his career in regional journalism and prior to joining the CIPD was news editor and employment law editor at Personnel Today magazine. He has an LLM in Employment law from Kingston University.
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