Employee screening: policy and process
Section two of the Personnel Today Management Resources one stop guide on employee screening, covering: the key areas that affect employee screening; managing HR policies and processes in line with current legislation; and understanding best practice in screening staff. Other sections .
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Use this section to Gain an overview of the key areas affecting employee screening Develop or review HR policies to enable appropriate screening Decide on action to ensure your policies and processes comply with recent legislative changes Understand best practice in screening staff
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Those responsible for developing HR policies and processes for screening employees need to balance the requirements of legal compliance and best practice. Policies must address the need for risk assessment to the company, its staff, customers and the public; while, at the same time, any screening methods adopted should be in proportion to the risk involved.
It is good practice for HR professionals to advise line managers on the business benefits of appropriate screening, whether to bar inappropriate people from specified roles or to ensure other candidates are not unfairly rejected on the basis of irrelevant criteria, and to monitor the recruitment process to ensure that guidelines are being followed.
The key issues to consider when developing policies and good practice are:
Data protection
Risk assessment
Criminal records
Illegal workers
Equal opportunities and diversity
Health and staff selection
Jobs handling large amounts of money
Data protection
The Data Protection Act 1998 (DPA), which impinges directly on all recruitment practices including the selection process, has caused a great deal of confusion among employers since its introduction in March 2000.
In a bid to help employers comply with the law, the Information Commissioner has produced a series of recommendations, action points and benchmarks in the Employment Practices Data Protection (DP) Code.
Although the code is not legally binding, the commissioner has made it clear that benchmarks from the code will be cited in enforcement of the Act.
The code is divided into four parts, the first and fourth parts the most relevant in terms of screening employees and related practices.
Part 1 on recruitment and selection has already been published, but the Information Commissioner is currently looking at how to make it clearer. Supplementary guidance is planned for summer 2004.
Part four on medical information (occupational health, medical testing, drug and genetic screening) is currently out for consultation and due to be published in autumn 2004.
The code's benchmarks cover a range of areas that affect employment screening, including:
applications
shortlisting
pre-employment vetting
interviewing
verification
The Employment Practices DP Code on recruitment and selection makes it clear that pre-employment vetting should be used sparingly and appropriately, using reliable sources and with candidates being made aware they are being screened.
Benchmarks on pre-employment vetting
Only use vetting where there are particular and significant risks to the employer, clients, customers or others, and where there is no less intrusive and reasonably practicable alternative
Only carry out pre-employment vetting on an applicant at an appropriate point in the recruitment process. Comprehensive vetting should only be conducted on a successful applicant.
Make it clear early in the recruitment process that vetting will take place and how it will be conducted
Only use vetting as a means of obtaining specific information, not as a means of general intelligence gathering. Ensure the extent and nature of information sought is justified
Only seek information from sources where it is likely that relevant information will be revealed. Only approach the applicant´s family in exceptional cases
Do not place reliance on information collected from possibly unreliable sources. Allow the applicant to make representations regarding information that will affect the decision to finally appoint
Where information is collected about a third party, for example, the applicant´s partner, ensure so far as practicable, that the third party is made aware of this
If it is necessary to secure the release of documents or information from a third party, obtain a signed consent form from the applicant
What are the rules on handling sensitive data on employees?
Employers can only collect, store, use, disclose or otherwise process sensitive personal data if they meet a series of conditions set out by the DPA.
Anybody processing information must only do so for purposes allowed by the employer, referred to as the 'data controller' in the DPA. The employer's obligations regarding the processing information include:
Selecting safe and competent workers
Ensuring a safe working environment
Avoiding discrimination on the grounds of race, sex or disability
Ensuring the reliability of workers with access to personal data
Protecting customers' property or funds in the employer's possession
Check immigration status before employment
You can therefore collect information about an applicant's criminal record or health in the recruitment process if you can show it is necessary to meet obligations in relation to workers' safety and any others to whom you owe duty of care.
Employers should not collect information on the criminal convictions of all applicants with the aim of protecting staff and customers. You can offer the same protection by obtaining this information only on successful applicants prior to confirmation of appointment.
What information should you retain in recruitment records?
Under the DPA, you should not keep recruitment records longer than necessary. Information obtained by a vetting exercise should be destroyed as soon as possible, up to a limit of six months.
Only information which is relevant to ongoing employment should be transferred from application forms to workers' employment records, any other information should be deleted.
In general, employers should delete any information about criminal convictions collected in the course of the recruitment process once it has been verified through a Criminal Records Bureau (CRB) disclosure. However, there may be some exceptional circumstances in which the information is clearly relevant to the ongoing employment relationship.
Where appropriate, advise unsuccessful applicants that there is an intention to keep their names on file for future vacancies and give them the opportunity to remove their details.
Any personal data obtained during the recruitment process should be securely stored or destroyed.
All employers need to carry out adequate risk assessments and put in place appropriate safeguards. But some need to be particularly vigilant in terms of assessing risk, such as organisations who are legally obliged to protect vulnerable customer groups, such as children in care from people who have committed serious sex offences.
It is vital to take adequate steps to identify the risks to customers, clients, employees and the business. Someone who is a convicted fraudster is not going to be suitable for working in a bank or as a cashier in the leisure centre. But they might make a very good gardener. Focus on what the person´s abilities, skills, experience and qualifications are.
Checks should be proportionate to the risks faced by an employer or others, and be likely to reveal information that would have a significant bearing on the employment decision, according to the DP code on recruitment and selection.
Appropriate risks are likely to involve aspects of the security of the employer or others and could range from dangers of breaching national security, the risk of taking on unsuitable individuals to work with children, to the risk of theft or the disclosure of commercially confidential information.
Making an objective assessment means recognising that just because someone has a criminal record does not mean they lack skills, qualifications and experience. High-quality training leading to qualifications is available in prisons and 55 per cent of the prison population have qualifications. Do not let personal prejudices affect judgement and good practice. In some cases, the employment of a reformed person with a conviction may bring valuable insight to the job.
Risk assessment involves looking at:
Your obligations under the law
The nature of the job
The nature of the workplace environment
Exposure to vulnerable people, property and money
Safeguards against offending at work, such as how much the job will be supervised
The circumstances that led to the offence
Repeat offences
How much time has passed since the offence took place
What efforts the individual has made to rehabilitate
In terms of legal obligations, employers must consider issues such as exemption status under the Rehabilitation of Offenders Act 1974, and duties under the Police and Children´s Acts regarding one-to-one contact with children, vulnerable adults or the elderly (see legal section). You must look at other legal constraints, for example, if you are employing a driver, you need to look for motoring convictions.
Make use of the job interview to discuss the nature of convictions with shortlisted applicants who have disclosed a criminal record. Information gathered at this juncture will be essential to the risk assessment.
The sort of questions employers should ask when deciding if a potential recruit represents a risk include:
What exactly does the job entail?
Does it involve direct responsibility for finance or valuable items?
Does it involve direct contact with members of the public?
Will the job present any realistic opportunities for the person to re-offend at work?
What could happen and how serious would it be?
What factors could heighten or lower the perceived risk?
What was the nature of the offence and how likely is it that the person is rehabilitated?
Does the offence create unacceptable risks for other people?
What led to the offence being committed, for example, financial difficulties or domestic strife?
Have the applicant's circumstances changed since the offence was committed, such as drug addiction therapy or improved personal situation?
Has the offence since been decriminalised by Parliament?
How much remorse is being expressed by the applicant?
Posts involving close contact with children or vulnerable adults
For any posts whose normal duties include caring for, training, supervising or being in the sole charge of children, applicants must be checked against the Protection of Children Act list, which has names of those who have committed offences in this area.
Each childcare post needs to be considered individually to see whether this applies. Staff on a paediatric ward would need to be checked, for example, whereas nursing and clinical staff treating children on other wards and GPs (unless specialising in childcare) would not.
Implementing safeguards
To implement adequate safeguards, you need to look at things such as:
How much and how closely the person is supervised
What procedures, such as auditing and involving others in the work process, could act as indirect supervision
How practical it is to have regular progress reviews
What precautions you can put in place
What training and briefing would help the line manager supervise the individual
The challenge of employing people with criminal records needs to be met sensitively, safely and fairly. Recruitment and selection policies and practices need to strike a balance, allowing you to comply with the law, maintain a duty of care to employees and customers, and protect the business's interests, while making sure you do not miss out on good candidates.
It is good practice to avoid blanket exclusion policies, and to have an open mind and focus on people´s abilities and skills to do the job.
The
introduction of the Police Act 1997 means employers can register with the new
CRB to obtain criminal record checks. There are three types of checks or
disclosures:
1. Basic
2. Standard
3. Enhanced.
Employers of the following are likely to require a standard disclosure certificate for the applicant:
People whose job requires regular contact with children and vulnerable adults
Pharmacists, lawyers or health professionals
Senior managers in banking and financial services
Administrators of justice
National security sensitive posts
Enhanced disclosure is required for jobs such as:
Those caring, training, supervising or being in sole charge of children or vulnerable adults, such as school teachers, doctors and nurses, social workers, scout and guide leaders
Registered child-minders, day carers or foster parents
Judicial appointments
Employers need to be aware of the reluctance of people with a criminal records to disclose information to employers - they know from experience that this can jeopardise their chances of being offered a job.
What is a criminal record?
A criminal record arises from a conviction. There are also police records but these are not criminal convictions. They include cautions, reprimands and final warnings. Cautions (for adults) and reprimands or warnings (for youths) are based on the seriousness of offences. A caution is a warning about a future conduct given by a senior officer, usually in a police station, after a person has admitted an offence. It is used as an alternative to a charge and possible prosecution. A final warning scheme is currently being piloted. Cautions, reprimands and final warnings do not generally relate to serious offences, nor to an offence where a finding of guilt has been made.
Police records are only available to employers in limited and specific circumstances.
Individuals are expected to pay for the certificates but employers may offer reimbursement if they wish.
Employers are liable for the consequences of misuse of CRB information - not the CRB.
To develop a policy on employing people with criminal records, you must:
Involve management in designing the policy
Carry out adequate risk assessments
Put in place appropriate safeguards
Register with Criminal Records Bureau
Inform applicants of this policy
Explain to staff the arguments in favour of giving those with criminal records a fair chance of getting a job
Examine insurance arrangements
Look into fidelity guarantee schemes.
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People and criminal records One in three men under 30 has a criminal record More than five million people in the UK have convictions for crimes which could have involved imprisonment At least 20 per cent of the working population are estimated to have a criminal record Less than 10 per cent of convictions are for violence to the person If a person with a criminal record finds settled employment or receives training with secured employment, their chance of re-offending is cut by two-thirds, according to Home Office statistics It is estimated to be at least eight times harder for a person with a criminal record to get a job than someone without. Source: CIPD |
Illegal workers
If you employ someone who has no permission to work in the UK, you could be breaking the law and be open to fines of up to £5,000 per illegal employee, under the Asylum and Immigration Act 1996.
But staying on the right side of the law is not easy. Employers have been increasingly struggling to cope with processing growing numbers of job applications from asylum seekers and recently called for more help from the Home Office in vetting applications.
Last year, the Home Office published a consultation document, Prevention of Illegal Working (available from www.ind.homeoffice.gov.uk ), outlining measures to clamp down on increasing numbers of illegal workers. One of its recommendations was that employers ask to see two separate forms of ID from job candidates.
How can we screen for illegal workers without discriminating?
Have clear written procedures for recruitment based on the equal treatment of all applicants
Ask everyone for valid documents and whether they need permission to work
Don't assume a foreign national or someone from an ethnic minority has no right to work in the UK
Build straightforward checks into normal recruitment procedures. Such checks should provide the employer with a statutory defence against possible charges if the employee is later found to be working illegally
Ask to see two separate forms of ID
Check very carefully that documents presented are originals and that they relate to the person concerned.
Take a copy of the document/s
Carry out checks in a non-discriminatory manner to satisfy the Immigration and Asylum Act's code of practice, section 22.
Don't assume someone is an illegal worker if they cannot produce a document: suggest they go to a Citizens Advice Bureau.
Although careful checking is advisable, employers are not expected to be experts in investigating the validity or authenticity of documents. The type of documents that are enough to secure a defence against prosecution for employing illegal workers are documents which:
Give the person's National Insurance number and name, such as a P45, National Insurance card, or a letter from a government agency or previous employer
Show the individual can stay indefinitely in the UK or has no restriction preventing them from taking employment, for example, an endorsement in a passport or a Home Office letter
Are a work permit or approval to take employment from the Department for Education and Employment
Show the person is a UK citizen, or has the right of abode in the UK, such as a passport, birth certificate, registration of naturalisation document or letter from the Home Office.
What sort of documents should I check?
A typical check would involve looking at ID and documents with a National Insurance number such as P45s, P60s or letters from the Benefits Agency.
Recruiting overseas workers
If you are recruiting overseas, it is essential to verify qualifications and employment history.
Watch out for strange-looking copied documents. Ask to see originals
Follow up references
Check validity of qualifications awarded and the status of educational institutions.
Ensure any interviews are carried out in a non discriminatory way so as not to fall foul of the law. Look at the code of practice in section 22 of the Immigration and Asylum Act 1999 for guidance on this.
The expansion of the EU from 15 to 25 states
From May 1 2004, citizens of Poland, Hungary, Slovakia, Slovenia, Lithuania, Estonia, Latvia, Cyprus and Malta will have free movement of travel throughout the EU. Thousands of people from these eastern European EU accession states are believed to be currently working illegally in industries such as construction, agriculture and catering.
The Government recently announced an amnesty for all illegal workers from these states if they join its employment register, coming into force on 1 May 2004. Such workers will not face any penalty for past illegal working.
Applying for work permits
It is the employer's responsibility to apply for work permits on behalf of people they want to employ.
Work permits do not tend to be issued for manual, craft, clerical and secretarial posts but for jobs:
Requiring a degree level qualification
Requiring at least five years senior management experience
Requiring specialised experience and high level experience
Which meet the criteria for the new Sectors Based Scheme (SBS) introduced on 30 May 2003.
Groups not requiring work permits include spouses of overseas workers who can lawfully work in the UK, EEA nationals and their families and Commonwealth citizens of UK ancestry.
Work Permits (UK) has a regularly updated list of shortage occupations for which work permits are issued with a minimum of checks.
Obtaining work permits
Contact Work Permits (UK) for the appropriate form or download it from their website (see resources section). If the employer has not applied for a work permit in the last four years, evidence that the company is trading will be required.
In terms of employment screening best practice in the equal opportunities arena, the usual laws apply making it unlawful to discriminate on grounds of gender, disability, sexuality, race, colour, ethnic or national origin or nationality.
Treat all applicants equally
The best way to make sure you do not discriminate is to treat all applicants equally. Do not just ask people who look or sound foreign for a passport. Carrying out checks only on some applicants, such as women or those who seem other than British, could see you falling foul of the Sex Discrimination Act 1975 (SDA) and the Race Relations Act 1976 (RRA).
But you must check the immigration status of job applicants before employment, in accordance with the Asylum and Immigration Act 1996 (see Illegal Workers).
The Commission for Racial Equality (CRE) emphasises the need for objectivity in selection procedures to combat racial discrimination in the selection process. Apart from examining selection criteria to make sure they are relevant and non-discriminatory, the CRE recommends:
An equal opportunities policy should be adopted, implemented and monitored to ensure that no job applicant receives less favourable treatment on racial grounds, or is placed at a disadvantage by requirements or conditions with a disproportionately adverse effect on his or her racial group
Staff responsible for shortlisting, interviewing and selecting candidates should be: clearly informed of selection criteria and of the need for their consistent application; given guidance or training on the effects that generalised assumptions and prejudices about race can have on selection decisions; and made aware of the possible misunderstandings that can occur in interviews between persons of different cultural background.
The Equal Opportunities Commission (EOC) recommends employers:
Establish and use consistent criteria for selection and promotion to make sure decisions are objective and do not leave the way open for unlawful discrimination
Take care in choosing and using selection tests where indirect sex discrimination can occur
Make sure all procedures are specifically related to job and/or career requirements.
Catering for disabled applicants
Developing a recruitment policy that treats disabled people favourably involves doing the following:
Plan ahead for the possibility of having disabled applicants in the future by considering their needs and building helpful improvements into plans affecting working practices
Ask candidates with disabilities to notify you of the nature of their disability and to indicate what assistance or special arrangements they might require
Make sure the skills and abilities that a test proposes to measure represent a valid assessment of job traits 'as far as is reasonably practicable'
Make sure the test is also free from bias or other unnecessary requirements that place a disabled candidate at a disadvantage in taking the test when compared with non-disabled candidates
Make reasonable efforts to assist the disabled applicant in taking the test
Consider making modifications to testing or assessment procedures or environments. For example, a person with restricted manual dexterity might be disadvantaged by a written test, so an employer might have to give that person an oral test
Consider whether you need to accept lower pass rates for a person whose disability inhibits performance in a certain test.
The increase in the potential for intrusive testing of individuals, including medical and genetic testing and screening for alcohol and drugs, was one of the factors that prompted the Information Commissioner to produce the Employment Practices DP Code.
Part four of the code on medical information (occupational health, medical testing, drug and genetic screening), currently out for consultation and due to be published in autumn 2004, should clarify what employers can and cannot do.
The basic tenets of good practice in terms of screening for ill health are:
It is reasonable to require candidates to complete a health questionnaire if good health is relevant to the job
Make any physical or medical requirement clear in your job advertisement and any other recruitment literature
If it is necessary to obtain medical records, make sure you observe the requirements of the Access to Medical Reports Act 1988
The organisation should pay for medical examinations
Do not hold on file sensitive personal data, such as information on physical or mental health or conditions, without individuals' express consent - unless it is to comply with legal obligations as an employer or to protect employees' vital interests.
Testing for drugs and alcohol
Testing for substance abuse is still not as widespread in the UK as in the US. Those employers who do carry out drug and alcohol screening tend to restrict it to job applicants to avoid souring ongoing employment relationships.
There are growing concerns about the risks of employing people with drug or alcohol abuse problems, in terms of likelihood of endangering others or of fraudulent behaviour in the workplace: substance abusers are 10 times more likely to steal from a company or its employees, according to figures from the US Department of Labor.
But it is important when developing policies in this area to remember that the UK has a culture of drinking alcohol and taking drugs - at least 3.5 million people are estimated to take ecstasy, according to government figures.
It can be argued that what someone does when they are not at work is their own business and drug and alcohol testing may prove that the person has indulged in recent months but may not pinpoint exactly when. If there is a blanket policy to only employ those who do not drink or take any drugs whatsoever, the organisation is likely to find it has an extremely small pool of applicants.
Until recently, testing all the applicants for a job was reasonably straightforward. Provided the screening procedure was implemented in a non-discriminatory manner, employers could lawfully ask all applicants to take the test. Since the publication of the Data Protection Code of Practice on Recruitment and Selection in March 2002, the situation has become more complicated.
Carrying out testing: good practice
Consider whether you really need to test individuals at all: it is arguably only relevant where health and safety is a prime issue
Ask for candidates' consent
Make sure you use a reputable testing firm with reliable testing methodology
Carry out testing only at the 'appropriate point' in the recruitment process, as recommended by the code
Do not comprehensively vet all applicants for a job - restrict vetting to the one individual who is successfully selected.
Screening for HIV
HIV status is not directly covered in existing UK discrimination laws but comes under health and safety laws, the Human Rights Act 1988 and rules on discrimination. But there have been a couple of recent legislative developments that will confer greater protection for workers (see law section).
Jobs involving handling large sums of money
Pre-employment screening is a requisite for many posts in the financial sector. Under the Financial Services Market Act 2000, regulatory body the Financial Services Authority (FSA) requires that a candidate is 'fit and proper' to fulfil certain 'approved person' roles and that they be honest, competent and financially sound.
An example of someone recently refused his application was a would-be investment adviser with a firm of financial advisers who had failed to disclose a county court judgement.
Some companies go over and above the FSA requirements, such as investment bank ING Barings, which contracts an outside firm to carry out robust background screening of previous employment and qualifications, screening all applicants rather than just those in approved person categories.
Checklist
Check which roles are in the approved person category: these tend to be senior, customer-facing roles
Establish what checks need to be carried out. Screening involves checking with the CRB and extensive employment references to rule out any past financial irregularities.
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One stop guide on employee screening: other sections Section one: The importance of screening candidates Section two: Policy and process Section three: Methods of employee screening Section four: Recruitment and selection Section nine: Model documents (this section contains a job description for a senior manager, application forms for manual posts and non-manual posts, a reference request form and reference clause in an offer letter, all of which can be found in the recruitment section of XpertHR's policies and documents service)
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