Q: I’m hiring a number of new employees. What kind of checks should I carry out before they start?
A: The majority of employment offers are now made conditional on the satisfactory completion of pre-employment checks. Where the conditions are not met, the employer will be entitled to withdraw the offer. While some employment checks are legally required, others will depend on the type of role, and the industry, the employment is in.
All employers are legally required to check whether new employees have the right to work in the UK. This check should take place before the employment starts and requires the individual to present documentary evidence of their eligibility to take up work.
The genuineness of these documents should be examined and a copy taken to be kept on the employee’s personal file. To avoid claims of discrimination, employers should check the right to work of every new starter, regardless of their nationality. This also stops any individuals who may be perceived as having the right to work, but don’t, from starting employment.
Failing to carry out these checks could lead to a substantial fine or a criminal conviction. Other legal checks will include checking the driving licence of a person employed as a driver and health checks where these are legally required.
For certain roles, employers will have to carry out criminal record checks to meet safeguarding requirements. A check can be carried out through the Disclosure and Barring Service (DBS) or Disclosure Scotland, to assess whether the individual has criminal convictions that make them unsuitable for the role.
The suitability of the employee for the role itself should also be reviewed.The main way employers do this is through requesting references from previous employers or other sources, such as academic references.
It is important that if a discriminatory reference is received, the discriminatory matter should not be relied on to refuse the job. Instead, the objective matters that are outlined in the reference, such as their performance in meeting targets, should be used to assess whether they will be the best person forthe role.
Any qualifications required for the position should also be checked by requesting supporting documents.
Some employers will now check social media accounts or do an online search to assess the overall suitability of the applicant. This is a tricky area of law and the search should not be a phishing exercise to tryand find a piece of evidence that the applicant is unsuitable for the post.
The search itself should be documented, including details of what was accessed and when. Any protected characteristics identified through the search should not be relied on when making hiring decisions as this will be discriminatory.
Peter Done is managing director of law firm Peninsula
