Pre-employment checks for employers

Pre-employment checks are an important part of the recruitment process. They help you to:

• comply with the law by ensuring the employee has permission to work - and remain - in the UK and has not been barred from carrying out the job - eg for roles working with vulnerable groups or holding the position of director
• check that the potential employee is suitably qualified or skilled for the job
• assess whether the potential employee is suitable for the job - eg for roles working with vulnerable groups or security roles
• check that the employee is physically able to carry out the job - though you must ensure you do not discriminate

There are a range of checks you can make, some of which are compulsory and others which may be desirable. The type of checks that can be carried out include:

• identity checks
• Disclosure Scotland checks
• Disclosure Scotland checks for people who do regulated work with children and/or protected adults and vulnerable groups in Scotland. The Protecting Vulnerable Groups (PVG) Scheme was created to replace standard and enhanced disclosure checks under the Police Act 1997.
• evidence of the right to work and remain in the UK
• references
• qualifications
• health

You must ensure your checks are not discriminatory (for example, a health check that discriminates against disabled people and is not necessary for the job) and do not discourage people from applying for the job.

You can make any job offer conditional on the outcome of pre-employment checks.

A conditional job offer does not become a binding employment contract until both parties have agreed to it and can be withdrawn if the conditions are not met

You should carry out your checks as quickly as possible once a conditional offer has been made.

The Centre for the Protection of National Infrastructure

The Centre for the Protection of National Infrastructure (CPNI) provides protective security advice. This is for companies and organisations that deliver the UK's essential services.

The first check you should make is to confirm the identity of the candidate and establish that their identity is genuine.

You should not undertake any other checks until you are satisfied that the candidate is who they claim to be.

You can check a person's identity by requesting original copies of documents - such as passports, birth certificates and driving licences. You can also ask for copies of documents that confirm that the person lives where they claim they do - eg by providing a recent bank statement or utility bill with their name and address on.

Alternatively, you can use a commercial online database checking service. Whilst these checks can prove that an identity exists, they cannot prove that the identity rightfully belongs to the person using it. You should back up any electronic check by obtaining original documents to support the claim.

The Identity and Passport Service has introduced a number of measures to help employers check for identity fraud, including the Card Validation Service and the Passport Validation Service.

You can verify the validity of a foreign national ID card by calling the UKBA Sponsorship and Employers' Helpline on Tel 0300 123 4699.

Although not compulsory, it is advisable to check a potential employee's references.

You can do this in writing or by telephone at any point during the recruitment process. Some candidates will prefer you not to check their references until they have been offered the job, and you must have their permission before any referees are contacted.

Except for certain employers in the financial services sector, employers aren't obliged to give references. The easiest way to obtain references is in writing. You could ask:

• when and for how long the candidate was employed
• what their job title and main duties were
• how many days of sick leave they took
• whether they were subject to disciplinary action - and if so - why
• whether they were reliable, honest and hardworking
• if there are any reasons why they should not be employed

Extra detail can be revealed by telephoning the referee. It is advisable to write to the referee first so they expect your call and have time to prepare.

If you have any doubts about whether a reference is genuine, you should ring back to check the referee's identity.

Are references confidential?

Generally, employees do not have the right to ask their employer to see a job reference that the employer has written about them. However, they may be able to gain access to it from the person the reference is sent to, so you should not assume a reference will stay confidential.

Individuals may also be able to access notes made about them during a telephone reference as well as any notes you make during and after their interview.

As well as looking at references, you should also check the applicant's qualifications, especially when the qualification is essential to the position you want to fill. In some professions, applicants must be in possession of specific qualifications before they can practice.

You can check qualifications by asking to see the candidate's certificates. Alternatively, you can check with the awarding bodies or use one of the checking services - such as Experian.

The Scottish Qualifications Authority (SQA) can provide you with details of the qualifications it accredits. Information is also available about the competence and performance levels they are based on.

The UK National Academic Recognition Information Centre (UK NARIC) can help you compare overseas qualifications with UK equivalents.

You may wish to include health checks as part of your recruitment process. A health questionnaire may ask about individual and family history and lifestyle. They can highlight potential problems requiring a follow up - eg by a medical examination.

Questions about disability and health during the recruitment process

Before offering a job to anyone, you should only ask about a candidate's disability or health if you need to find out whether:

• they will be able to attend an interview or do some form of selection test
• you will need to make a reasonable adjustment to enable them to attend an interview or do the test
• they will be able to do something that is intrinsic for the job in question

You can also ask about a candidate's health if:

• you want to monitor the diversity of your applicants
• you want to take positive action to enable you to recruit more disabled workers
• the job in question is one for which having a disability is an occupational requirement

Asking a question about disability is not in itself discriminatory. However, your conduct following the candidate's response could lead an employment tribunal to conclude that you have carried out a discriminatory act.

When to carry out pre-employment health checks

You should only complete pre-employment health checks:

• once you have offered the job to a particular person
• where any candidate - disabled or not - would be required to undergo testing to decide if they are fit to carry out the job
• where testing is needed to meet any legal requirement - eg eye tests for commercial vehicle drivers
• when you are sure you need this information and have policies in place to securely hold the information as required by the Data Protection Act 1998, regardless of whether it is in paper or electronic form

The level of assessment will depend on the nature of the job and can range from simply checking the levels of absence in a previous job to a full health assessment.

If you are making a job offer conditional upon the candidate's fitness for the work, this should be stated clearly in the offer letter.

You must ensure you are not carrying out discriminatory practices in asking potential employees to pass a health check. Health checks - if required - should be carried out on all candidates to avoid unfairly discriminating against disabled candidates.

You may be required to pay a fee for a medical report on a candidate. The candidate must give you their written consent before you request a medical report.

Candidates have the right to see the report and can request that it is amended or withheld from you. Even without the applicant seeing the report, the doctor must keep it for 21 days before sending it to the employer.

Certain positions will enable the employer to apply for a Basic Disclosures check for the potential applicant from Disclosure Scotland. This is usually required when people are working regularly with children or vulnerable adults. The Security Industry Authority also carries out a criminal record check (in England) or Basic Disclosures check on anyone who applies for a security licence.

Criminal records checks should not be requested until a job offer is made, but you should make it clear, in writing, that the job offer is conditional upon a Basic Disclosures check.

You must be registered with Disclosure Scotland or use the services of an 'umbrella body' if you want to obtain Disclosure Scotland checks. A registration fee of £150 is payable.

Avoiding discrimination

Once you have received your copy of the Disclosure Scotland certificate, you can assess whether the candidate is suitable for the job. A Disclosure Scotland check will reveal previous convictions. Generally, under the terms of the Rehabilitation of Offenders Act (1974), someone convicted of a criminal offence who does not receive any further convictions during 'the rehabilitation period' becomes a rehabilitated person. Their conviction is regarded as spent - therefore after a certain period of time, you should treat the person as if the conviction had not happened.

In most cases where a position is not eligible for a Disclosure Scotland check you cannot:

• insist on being told about a criminal offence that is spent
• take into account offences which are spent

However, a conviction resulting in a prison sentence of more than 30 months can never be spent.

A person must disclose all convictions - including spent ones - if the job offered falls into an exempted category according to the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003, including:

• regular contact with children and vulnerable adults
• people applying for gaming and lottery licences
• work as a barrister
• police work
• posts relating to the administration of justice or financial regulation

Whether the conviction is spent or unspent, you should carefully weigh a number of factors, including:

• how long ago the offence was committed
• the candidate's age at the time
• the relevance of the offence to the job offered
• the penalty awarded
• whether the offence was isolated or part of a pattern of offending
• what is known about the person's behaviour before and since

People should not be unfairly discriminated against due to past convictions. You should also give the candidate a chance to explain if a check reveals adverse information about them.

All employers in the UK have a responsibility to stop illegal migrants working. You must therefore check the entitlement of everyone you plan to employ to work in the UK. Failure to do so may result in a civil penalty or criminal conviction.

Some people can work in the UK without restriction, including:

• citizens of the UK, Channel Islands, the Isle of Man and Ireland
• Commonwealth citizens with the right to live in the UK
• most European Economic Area (EEA) and Swiss nationals, although nationals of some Eastern European EEA countries will need authorisation or to register with the UK Border Agency (UKBA) to work in the UK
• family members of nationals from EEA countries and Switzerland that are residing lawfully in the UK
• dependants of migrants who have entered the UK under one of the tiers of the points-based system

Even if you think that a potential employee has the right to work in the UK, you should still make the necessary checks. You should ask candidates to provide evidence of their right to work in the UK by producing original copies of documents specified by the UKBA.

Employing someone who does need permission to work in the UK

If you wish to employ someone who isn't permitted to work in the UK without restriction, they will have to apply to work under the points-based system.

The points-based system replaces nearly all previous routes to work, train or study in the UK.

Applicants must obtain a specified minimum number of points. These will be awarded for a combination of skills and attributes, such as:

• age
• qualifications
• previous earnings
• knowledge of the English language
• savings

Most categories of employee will need a certificate of sponsorship from an employer with a sponsor licence issued by the UKBA.

Jobcentre Plus and the European Employment Service (EURES) network

Jobcentre Plus is part of EURES, a network which links all of the public employment services in Europe. Its role is to help people move freely within the EEA and take up work in other member states. It can also help you to recruit workers from other EEA countries if you cannot find the right people for your jobs locally.

No contract of employment exists until a candidate has accepted an offer and all conditions under which the offer was made have been satisfied.

You can withdraw conditional job offers made subject to suitable references and criminal records checks, where the results are not as you expected.

If a candidate starts work before the results of checks have been received, you should make it clear that the offer may be withdrawn if the checks prove unsatisfactory.

You may also wish to offer employment subject to a trial or probationary period. The length of the period may depend on the type of job and how much time is needed to demonstrate the necessary skills.

If you decide to withdraw the offer at the end of the period, you need to give the employee the notice period specified in their written statement. It's also highly advisable to explain clearly why the offer is being withdrawn to avoid potential legal claims, eg for discrimination.

If no notice period has been agreed, they are entitled to the statutory minimum notice period, or to any longer period which is the established custom or practice within the industry.

An alternative to withdrawing an offer is to extend the probationary period - if the contract allows - and to provide appropriate training.

Employees cannot claim unfair dismissal before completing one year's service (if employed before 6 April 2012) or two years' service (if employed on or after 6 April 2012), unless it is for a number of automatically unfair reasons.

However, an employee dismissed during - or at - the completion of their probationary period may be able to claim breach of contract if - for example - you have not provided training that you promised would be given.

The Data Protection Act 1998 applies to personal information - data about living, identified or identifiable individuals, including information such as names and addresses, bank details, and opinions expressed about an individual.

There are eight data protection principles. Information should be:

• processed fairly and lawfully
• processed for one or more specified and lawful purposes, and not further processed in any way that is incompatible with these purposes
• adequate, relevant and not excessive
• accurate and - where necessary - up to date
• kept for no longer than is necessary for the purpose for which it is being used
• processed in line with the rights of individuals
• kept secure with appropriate technical and organisational measures taken to protect the information
• not transferred outside the European Economic Area (the European Union member states plus Norway, Iceland and Liechtenstein), unless there is adequate protection for the personal information being transferred

The use of sensitive information - including information that might be disclosed during a criminal records check - is more tightly controlled.

There are some guidelines you should keep in mind in relation to pre-employment checks. You should:

• only carry out checks which are necessary
• think carefully about the best point in the process to carry out the different checks
• where possible, only check the successful applicant
• let applicants know what checks will be made and how they will be carried out
• make sure that checks are carried out for a specific purpose
• only use sources which will reveal relevant information
• only rely on information that comes from sources you trust
• give the candidate the chance to explain if a check reveals adverse information about them
• if a third party is to be involved in the process - eg a previous employer not listed as a referee - let the applicant know

Any information you gather in the process of making your pre-employment checks must be kept securely and confidentially. The candidate has the right to ask to see any information you hold on them which you must supply within 40 days of receiving the request. You can charge a fee of up to £10 for providing the information.