Employee screening: the law
Section six of the Personnel Today Management Resources one stop guide on employee screening, covering: checking compliance with legal requirements; and making preparations for forthcoming law. Other sections .
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Use this section to Check your organisation's compliance with legal requirements Inform line managers and respond to queries on vetting staff Make presentations to senior management on compliance Make sure you are prepared for laws coming into force this year
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Employee screening is covered by a host of legislation, ranging from privacy protection and equal opportunity laws to those governing the employment of ex-offenders, non-British born workers and those working with large sums of money, children or vulnerable adults, or in jobs where safety is an issue.
Key legislation at a glance
Asylum and Immigration Act 1996
Care Standards Act 2000
Crime and Disorder Act 1998
Data Protection Act 1988 (DP Act)
Disability Discrimination Act (DDA)
Employment Equality (Sexual Orientation) Regulations 2003
Police Act 1997
Protection of Children Act 1999
Race relations Act 1976
Rehabilitation of Offenders Act 1974 (ROA) and ROA 1974 (exceptions)
Q. Are we legally allowed to check whether a candidate is lying on their application form?
A. The DP Act does not prevent you from checking whether a candidate is lying, but it does require you to make the candidate aware of checks.
Q. Is the Employment Practices Data Protection Code legally binding?
A. No, but employers risk breaking the law if they disregard the recommendations. The commissioner has made it clear that benchmarks from the code will be cited in enforcement of the Act.
Q. What information can we collect about applicants in the recruitment process?
A. The DP Act does allow you to collect information about applicants' criminal records or health if you can show it is necessary to protect workers and any others to whom you owe duty of care. Collecting information on the criminal convictions of all applicants as opposed to only successful applicants is likely to be seen as excessive.
Q. How long can we hang onto data?
A. Under the DP Act, you can keep recruitment records for no longer than necessary - for up to six months. You can retain records of results of the vetting or verification. However, only information relevant to ongoing employment should be transferred from application forms. Information about criminal convictions should be deleted unless it is clearly relevant to the ongoing employment relationship.
Q. What is the Data Protection helpline?
A. The DP helpline has been set up to help employers make sense of the Act. The Information Commissioner has said that it should only be used as a last resort.
Q. How do we ensure we only employ people legally entitled to work in the UK?
A. Under section 8 of the Asylum and Immigration Act 1996, employers can be guilty of a criminal offence if they employ anyone without permission to work in the UK. It applies to those who started work on or after January 1997. Employers are liable to fines of up to £5,000 per illegal employee.
Section 22 of this Act contains a code of practice, which provides guidance on avoiding prosecution under the Asylum and Immigration Act 1996.
It is also illegal under the Race Relations Act 1976 to fail to consider applicants just because they sound or look foreign.
Q. Is reference checking a legal requirement?
A. Yes, in occupations and industries covered by the Care Standards Act 2000, which is designed to protect the public from unqualified or dangerous workers. These include independent hospitals, clinics and medical agencies.
Q. What are our legal obligations under the DP Act in terms of obtaining and supplying references?
A. The common belief that the Act gives individuals the right to gain access to references about them is not true. Under Schedule 7 of the DP Act, individuals are explicitly excluded from access to references about them, unless the reference was not given in confidence. But this exemption is limited to while the confidential reference is "in the hands of the organisation which gave it", according to two publications from the Information Commissioner: the Data Protection Act, legal guidance, December 2001, and the Employment Practices Data Protection Code, Part 1, March 2002.
Part 1 of the code says the role of refer-ences is to confirm factual details supplied by applicants. It recommends employers:
only obtain details directly relevant to a particular vacancy, and which will be used as part of the selection process job applicants
explain the reference procedure to applicants, including the nature of the information what will be requested, and obtain their consent
give applicants the opportunity to make representations should any checks produce discrepancies.
Q. What legislation governs employers in the care sector?
A. The Care Standards Act set out to prevent abuse in children's homes, care homes and other care services, and saw the establish-ment of the National Care Standards Commission to regulate care providers.
Under the Act, the Department of Health issued a number of national minimum stand-ards to be taken into account by the comm-ission when deciding whether a healthcare employer can continue in business.
Service providers in the following cate-gories must register with the commission:
Care homes (both residential and nursing)
Children's homes
Independent healthcare services
Domiciliary care agencies
Independent fostering agencies
Residential family centres
Nurses agencies
Voluntary Adoption Agencies.
The registration process is designed to help ensure managers have adequate experience and qualifications. National Standard C9 requires employers to:
have a written recruitment procedure
ensure they seek employment references from the two most recent employers before making an offer of employment.
Q. What is the Protection of Children Act (PoCA) list?
A. The PoCA list, introduced as part of the Care Standards Act 2000, acts as a workforce ban on people who have harmed or placed children at risk while in their care. The Criminal Records Bureau (CRB) carries out checks against this list as part of the disclosure service.
The Criminal Justice and Court Services Act, which amends the PoCA, makes it an offence for anyone to seek work or accept work in a regulated position knowing they are included on the PoCA list. It is also an offence for an employer to offer work or to employ anyone in a regulated position knowing they are on this list.
A regulated position is:
a position whose normal duties include caring for, training, supervising or being in sole charge of children.
Q. Is there a similar list to protect vulnerable adults?
A. Yes, the Protection of Vulnerable Adults (PoVA) list, set out in Part 7 of the Care Standards Act 2000 and to be published in June 2004. This list will also act as a workforce ban on people who have harmed or placed at risk of harm, a vulnerable adult in their care. Care providers must not employ individuals on the PoVA list and checks against the list will be requested as part of disclosures from the CRB.
Q. How do we get access to applicants' criminal records?
A. The Police Act 1997 (Part 5):
enables access to criminal record checks
introduces three types of criminal record checks or disclosures
supports protection of individuals afforded by the Rehabilitation of Offenders Act (ROA) 1974
requires employers to register with the CRB in order to be able to ask individuals to apply for disclosures. It is an offence under the ROA (Exceptions) Order 1975 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 bribery.
Q. Which types of criminal record chekcs can we apply for?
A. There are three different levels of criminal record checks. Standard and enhanced disclosures are those relevant to employers:
Basic disclosure (BD): BDs are not yet available. They will be issued to indivi-duals who can choose whether or not to show it to an employer. A BD shows all national convictions that are not spent under the Rehabilitation of Offenders Act 1974 (ROA)
Standard disclosure (SD): SDs are available for posts that are exceptions to the ROA, including those involved regularly with children, young people, the elderly, sick or handicapped, administration of the law and other sensitive areas.
Enhanced disclosure (ED): EDs are available to those applying for posts involving regular care for, training, supervising or being in sole charge of young people, for certain statutory licensing purposes and judicial appointments. EDs contain similar information to the SD and include local police records such as relevant non-conviction information.
Q. Can a disclosure be used more than once?
A. Disclosures carry no period of validity as they are designed to be used immediately at the point of recruitment for a particular position. Although they are issued for specific positions, there may be instances where a disclosure could be used for another job. The CRB's website includes guidance on deciding when this is applicable.
Q. Can the CRB carry out checks abroad?
A. No, but the CRB does provide advice to employers on how to obtain police checks from other countries.
Q. Who is liable for misusing CRB information?
A. Employers are liable for the consequences of misuse of CRB information, not the CRB.
Q. When is a conviction considered to be spent?
A. Under the ROA 1974, which is currently under review, 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 more than two and a half years
no further convictions occurred within the rehabilitation period.
Q. When is an individual obliged to tell us about offences?
A. Cautions, reprimands and final warnings, which do not generally relate to serious offences, nor to an offence where a finding of guilt has been made, do not have to be declared. But a person with a criminal record must declare a caution.
Once a conviction is regarded as 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?"
Q. Are there any exceptions to this?
A. Some occupations are exceptions and are listed in ROA (Exceptions) Order 1975.
These include:
The professions, for example, medical practitioners, barristers, accountants, vets and opticians
Those employed to uphold the law, for example, judges, constables, prison officers and traffic wardens and those involved in the provision of social services
Certain regulated occupations such as firearms dealers, directors of insurance companies and those in charge of some nursing homes.
Q. Are there any different requirements for checking recruits into the financial sector?
A. The Financial Services and Market Act 2000, which came into force on 1 December 2001, requires the approval of individuals who will be working in controlled functions to be 'fit and proper', meeting honesty, competence and financial soundness criteria. The Financial Services Authority (FSA) carries out checks into individuals, focusing on money laundering, fraudulence, dishonesty and criminal market misconduct such as insider dealing.
Q. What steps should we take to avoid our screening process discriminating against disabled people?
A. The Disability Discrimination Act 1995 (DDA) prohibits discrimination by an employer against a disabled person "in the arrangements which he makes for the purpose of determining to whom he should offer employment". Such discrimination may take the form of "less favourable treatment" or failure to comply with the duty of "reasonable adjustment".
According to the DDA Code of Practice, these arrangements include "the processes of selection", assessment techniques and selection criteria.
Under the DDA, you must ensure these arrangements for determining an offer of employment do not place a disabled person at a "substantial disadvantage in comparison with persons who are not disabled". This includes not only actual applicants for employment but potential applicants who have put the employer on notice as to the possibility of making an application.
You must be able to:
Demonstrate to tribunals that the skills and abilities that a test proposes to measure represent a valid assessment of job traits as far as is reasonably practicable
Show the test to be 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
Show the tribunal you have made a reasonable effort to assist the disabled applicant in taking the test.
As part of your duty to make reasonable adjustments, you may be required to modify the procedures for testing or assessment (Section 6 of the DDA).
This could have far-reaching implications for psychological test users as they might have to make changes to the testing environment, or the format of tests, in order to accommodate applicants and employees with disabilities. The DDA code states, in paragraph 4, that this could involve ensuring that particular tests do not adversely affect people with particular types of disability. 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.
The DDA code also states that although the Act does not prevent employers from carrying out aptitude or other tests in the recruitment process, routine testing of all candidates might discriminate against particular individuals or substantially disadvantage them. Tests, or the way the results of such tests are assessed, might need to be revised to take account of specific disabled candidates, such as accepting lower pass rate. The extent to which this is required would depend on how closely the test is related to the job in question and what adjustments the employer might have to make if the applicant were given the job.
If numeracy tests are set for prospective employees, it might be applicable to waive that requirement for a person with a learning disability who does not achieve the required level if the job in fact entails very little numerical work, and the candidate is otherwise well suited for the job. Similarly, it might be a reasonable adjustment to allow an applicant with a bad stammer more time to complete an oral test, or to give the test in written form instead, unless oral communication is relevant to the job and assessing this was the purpose of the test.
Q. Can we screen for HIV and refuse to employ candidates with HIV status?
A. December 2003 saw a couple of changes in the legal arena affecting people with HIV status in the workplace
The new Employment Equality Regulations 2003 came into force with the aim of preventing discrimination against gay men because of actual or perceived HIV status.
And the Government published a draft Disability Discrimination Bill that extends the scope of disability under the Disability Discrimination Act 1995 (DDA) so that workers with HIV can de considered disabled as soon as it is diagnosed. The DDA currently only offers some protection against HIV-related discrimination. HIV can fall outside the statutory definition of a disability because individuals must have a physical or mental impairment that affects their ability to carry out everyday normal activities in a substantial long-term adverse way. HIV is categorised as a progressive illness and if individuals do not show symptoms, the DDA does not currently protect them.
Although it may be some time before the Bill comes into force, a statutory definition of harassment on grounds of disability will be effective from October 2004.
The new Employment Equality (Sexual Orientation) Regulations 2003 offer greater protection for workers and job applicants, prohibiting sexual orientation discrimination and harassment based on HIV status, regardless of gender.
The Sex Discrimination Act 1975 has been used at times. One airline company's policy of recruiting only female cabin staff to avoid the perceived health risk of HIV was served a non-discrimination notice by the EOC, which found that HIV-positive staff posed no health risk to passengers.
Q. What are the new requirements of agencies?
A. The Conduct on Employment Agencies and Employment Business Regulations 2003 comes into force in April 2004. The regulations tighten up requirements on agencies in screening and selecting temps and potential recruits, as well as imposing limits on fees charged to firms who employ agency temps as permanent employees.
Under the new regulations, agencies are required to improve their selection and screening of temps and potential recruits. Regulation 20 requires agencies top take steps such as carrying out their own investigations of candidates, identifying any requirements imposed by law or a relevant professional body relating to the job that either the individual or employer must satisfy to do the work.
The full text of all public general acts since 1988 is available at www.hmso.gov.uk/acts.
Statutory instruments since 1987 are available
at www.hmso.gov.uk/stat
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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 six: The law 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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