Pre employment screening checks are a critical part of a business’s recruitment and onboarding process.
The following guide looks at the various different types of checks that should be conducted and how to carry these out, as well as the legal, practical and financial consequences of failing to do so.
What are the pre employment screening checks?
Pre-employment screening checks allow employers to identify risks associated with an individual before an employment contract is entered into.
However, employers often face uncertainty as to what checks should be undertaken and how these should be conducted, since the nature of pre employment screening checks will often depend upon the job role on offer.
There are various checks that you may consider before hiring someone, such as checking a candidate’s qualifications and credentials, as well as identity and credit checks where relevant to the job role, or even social media checks.
However, the key pre employment screening checks, including those that you must undertake to comply with the law, include right to work checks, criminal record checks, medical checks and reference checks.
Right to work checks
Carrying out a right to work check is the most effective way of ensuring that a prospective employee has the legal right to work in the UK. In this way, you can help to minimise the risk of illegally employing a migrant worker.
Moreover, employers have a legal obligation to carry out right to work checks before they employ someone, to make sure that the individual is not disqualified from carrying out the work in question by reason of their immigration status.
That said, you should not discriminate when conducting right to work checks, rather you should conduct these checks on all prospective employees, not only those who appear to be migrants. In other words, you should never make assumptions about a person’s right to work in the UK, or their immigration status, on the basis of their colour, nationality, ethnic or national origins, accent or the length of time they have been resident in the UK.
The right to work check will reveal the nature of the permission given to a foreign national to work in the UK and to undertake the work in question including, for example, any limitations placed on the type of work they can do and the number of hours they are permitted to undertake.
Criminal record checks
A criminal record check, more technically known as a Disclosure and Barring Service (DBS) check, can be an extremely effective way of helping employers make safe recruitment decisions.
However, you should only carry out a criminal record check where this can be justified in relation to the job role on offer. In other words, the check must be both proportionate and relevant to the role in question. That said, there are specific legal requirements for a DBS check to be completed in relation to certain job roles, for example, any role involving children or vulnerable adults.
There are four levels of DBS checks available, namely a basic check, a standard check, an enhanced check and an enhanced check with barred list(s), whereby the information contained on each check is different. The DBS barred lists are a record of people who are not permitted to work in a regulated activity with children and/or vulnerable people.
Your eligibility for standard and enhanced checks is prescribed in law, where you should only request this type of DBS check when legally permitted to do so.
In other cases, it is important to remember that while there is nothing to prevent you from asking a prospective employee about their criminal record if it is considered necessary and proportionate, the extent to which you can base your decision to hire someone because of any spent convictions is extremely limited.
A medical check can be an effective way of determining whether a prospective employee is fit to perform a particular role, but this will only be appropriate if the job requires certain physical abilities, such as heavy lifting or climbing, or the check constitutes a specific legal requirement of the job role in question, for example, where a commercial vehicle driver would need to pass an eye test.
Typically, however, an employer should not ask any questions relating to the health or disability of a candidate during the recruitment stage so as to avoid any alleged unlawful discrimination against individuals with disabilities.
That said, it is acceptable to ask questions in the early stages of the recruitment process to determine whether any access requirements are necessary for a person to apply for the job in the first place, for example, applicants with sight difficulties may need information in a different format, or wheelchair users may need to be interviewed on the ground floor.
Equally, having offered a successful candidate a job, you can go on to ask for further details about any medical condition to determine if any reasonable adjustments need to be made to enable them to do their role. This could include, for example, adapting their workspace or providing specialised equipment.
A reference check is one of the most effective ways to ensure that you are hiring the best person for the role. However, with the exception of regulatory references applicable in the financial services sector where it is a statutory requirement to request a reference when recruiting an individual into various specified roles, there is no legal obligation on an employer to undertake reference checks.
That said, it is always advisable to seek at least one reference to ensure that the prospective employee is suitability qualified and/or experienced to undertake their new job role. Further, it is standard practice for an employer to make a conditional job offer to a successful candidate, in other words, subject to satisfactory references being provided.
The reference check will not only help to verify that a candidate has been open and honest in their job application and interview responses, it will also provide you with a more objective assessment of the candidate’s previous job performance and personal qualities.
What are the penalties for failing to carry out pre employment screening checks
Needless to say, any failure to carry out thorough pre employment screening checks can put you at risk of employing someone who is not suitable for the job. Further, as set out above, there are certain checks that you should always carry out to avoid falling foul of the law, not least the right to work check to ensure that an individual is eligible to work in the UK.
By conducting a right to work check, this will provide you with a statutory excuse against liability for a civil penalty in the event you are found to have employed someone who is prevented from carrying out the work in question by reason of their immigration status.
In contrast, where you are found to be employing someone illegally and you have not carried out the prescribed checks, or not done so correctly, you may face various sanctions including a civil penalty of up to £20,000 per illegal worker, as well as a criminal conviction carrying a term of imprisonment and an unlimited fine.
It is also a criminal offence for an employer to hire a person to work in a regulated activity with children and/or vulnerable adults if they have been barred from doing so. As such, where legally required, you should always carry out a standard or enhanced criminal record check.
How should pre employment screening checks be conducted?
When conducting pre employment screening checks, you should always be mindful about the manner in which these are undertaken, since a failure to carry out a check correctly can, in itself, lead to problems.
By way of example, errors in record keeping or reliance on an incorrect document, or indeed any failure to conduct a right to work check as prescribed by law, can lose you the benefit of any statutory excuse that you would otherwise have been afforded if found to be employing an illegal worker. You should also ensure the checks are conducted consistently on all new employees, to avoid allegations of discrimination.
In respect of right to work checks, in most cases you will be able to conduct either a manual or online check. When conducting a manual right to work check you must obtain original versions of one or more acceptable documents, check the validity of these documents in the presence of the holder, and make and retain a clear copy, recording the date the check was made.
For online checks, you would use the Home Office online right to work employer checking service on Gov.uk, which requires you to check that any photograph is of the individual presenting themselves for work, and not an imposter, and retain a clear copy of the response provided by the online right to work check.
In respect of criminal record checks, an individual can apply for a basic check directly to the DBS through an online application route or, alternatively, an employer can apply for a basic check on an individual’s behalf, through a responsible organisation, where they have consent.
An individual cannot apply for either a standard or enhanced check, rather there must be a recruiting organisation that needs the applicant to get the check which is then sent to DBS through a registered body.
In relation to any medical check, as a matter of best practice, you should always inform the candidate of any such requirement in your offer letter. You will also need to obtain their written consent before requesting a report from their GP.
Finally, when requesting references, typically the candidate will be asked to provide the name and contact details of suitable referees, giving permission for you to contact those individuals or organisations directly.
When contacting the referee(s), at the very least, you should ask for the employment dates and details for the individual, their main role and responsibilities in their previous job, their attendance record, any disciplinary actions recorded against them and any reasons why they shouldn’t be employed.
When should a job offer be withdrawn following a check?
In most cases, it is acceptable to withdraw the offer of a job in circumstances where pre employment screening checks reveal something negative. That said, where a disability comes to light following a medical check, you should always be mindful about withdrawing any job offer, especially if that disability does not prevent the candidate from undertaking the job role in question.
Furthermore, where appropriate, you must always consider what reasonable adjustments could be made to ensure that the candidate can perform the job, rather than refusing to hire them.
In any scenario where you decide to employ a successful candidate on a probationary or trial basis, pending any pre employment screening checks being completed, you must ensure that the new starter is fully aware of the conditional nature of their role, setting this out in writing and including a specified notice period in their written statement should you wish to terminate it.
For any employee who has been working for you for one month or more, they are statutorily entitled to one weeks’ notice.
Although it is not uncommon for employers to take on new employees before completion of all pre employment screening checks, typically prior to receiving any written references, it is important to remember that by employing someone before carrying out right to work and criminal record checks you could be breaking the law – not least where you employ someone who is not legally permitted to work in the UK or not permitted to work with children or vulnerable people.
Pre employment screening can be an effective way of ascertaining the suitability of job applicants, in particular, that they possess the required qualifications and skills, as well as safeguarding against future personnel problems and ensuring that you do not fall foul of the law.
As employer solutions lawyers, we can assist if you have any queries relating to background checks and processes and systems for ensuring candidate suitability as part of your recruitment risk management. Speak to our experts today for advice.
Pre employment screening checks FAQs
What are pre employment screening checks?
Pre employment screening checks are a way for employers to confirm the background of a potential employee, that they satisfy the preconditions of the role and to identify potential risks associated with employing the individual, such as a criminal history or having no UK right to work.
How long do pre employment checks take UK?
Processing time can vary by employer, but could usually take up to 4 weeks.
What would make someone fail a pre employment background check?
There are a many reasons why someone could fail a pre employment screening, which typically depend on the type of role and the employer. Common grounds include embellished or false qualifications or experience, poor credit history and having a criminal conviction when applying for a job requiring high security clearance.
Last updated: 9 November 2021