British American Business 2008 | Practical Advice | Labor Law

Points of reference When is employee screening appropriate? Adele Martins of Magrath LLP explains

Personal information has never been more accessible or more abused. Tales of identity theft are worryingly commonplace and employers are resorting to ever more resourceful ways of ascertaining whether employees are who they say they are and, whether they have the qualifications they profess to hold.

How to screen?

In an effort to ensure recruitment of “the right sort of people” an increasing number of employers are going beyond standard checks and undertaking formal screening. In many instances they are inadvertently overstepping the law in doing so.

The backlash from employees has already started – with complaints being made that employers should not be permitted to use personal information posted on social networking websites when making decisions about recruitment or promotion. The appropriate process to be used in vetting or screening employees to assess trustworthiness, suitability, security and to check previous convictions depends greatly on the nature of the role, seniority of the position, and whether employment has already commenced. The more established the employment relationship, the more difficult it is for a company to justify initiating background checks or investigations.

Data Protection Act 1998

One major area to be considered when screening employees is the effect of the Data Protection Act 1998 (DPA), as by definition, screening will involve the gathering of information, the verification of that information and possible further checks on the employee. All data processing (including employee screening) must comply with the principles of the DPA – one of the requirements of which is that the information processed must be proportionate. Consequently, it is simply not open to an employer to find out everything and anything they can about a potential employee – instead they must ask whether the information is really needed to make the decision to hire.

Pre-employment screening

When gathering information on individuals before employment has commenced the basic principles are as follows:

• Information should not be sought from job applicants for the purpose of employee screening unless it can be justified as being necessary to make the decision to hire the employee.
• The scope of the information gathered during the screening process must be relevant and proportionate to that which the company is seeking to achieve.
• Although it is sensible to standardize screening processes to avoid allegations of discrimination based on disparity of treatment, those processes must be applied and tailored appropriately. The same questions should not necessarily be asked of all prospective employees. In particular, information on criminal convictions should only be requested if it is relevant to the job being filled.
• The company should explain to applicants (as early as possible in the process) the nature of the screening that will be undertaken and the methods used to carry it out.
• The company should not require applicants to obtain records from a third party by making it a condition of their appointment. For example, access to certain records needed to check information may only be available to the individual concerned, such as release of records from an educational establishment. This is known as “enforced subject access” and is an offence under the DPA.
• Comprehensive investigation for vetting purposes should only be conducted on a potentially successful applicant and take place late in the recruitment process.
• The company should not routinely investigate and vet all applicants and should only subject all short-listed applicants to basic written checks and the taking up of references.
• Where any investigation results in the recording of adverse information about an applicant, the applicant should be made aware and be given the opportunity to make representations, either in writing or face to face.

Pre-employment screening should not be a generic process that applies to every job applicant, but only to those in respect of whom (ie, in relation to the jobs they will perform) particular risks apply. Potential employees should always be informed that a screening process will be undertaken, and written consent should always be obtained beforehand. Any job offer should be subject to references. If any issues are revealed during the pre-employment vetting process, these must be drawn to the attention of the applicant, and an explanation sought.

Criminal records

In some circumstances an employer may take the view that they need to know whether an applicant has a criminal record. The Criminal Records Bureau (the CRB) can provide this information – but it will not be appropriate, or possible, to undertake a CRB search in all circumstances.

The ability of an employer to undertake a CRB search is limited to organizations where the release of this information is felt to be appropriate – for example organizations where the applicant will be working with children. Individuals can submit a request for basic level CRB information but this will not provide details of spent convictions. Although an individual can exercise the right to apply for access to information held about them under the “subject access” provisions of the Data Protection Act 1998 (which will include criminal record information about spent convictions held by the CRB), employers and potential employers must not compel individuals to do this. In general terms, most employers are not entitled to ask for information about spent convictions under the Rehabilitation of Offenders Act (ROA) 1974 – although some application forms still ask for this information to be provided.

If a criminal records check is required, employees should note:

• A company must not require all short-listed applicants to obtain a disclosure – even a basic level disclosure to which they are entitled from the CRB. The relevant information should simply be requested as part of the application form, accompanied by an appropriate declaration by the applicant as to the accuracy of that information.
• Criminal offences that are spent do not normally have to be declared. There are exceptions for certain types of job that are covered in Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 – but unless the role falls within those exemptions an employer is not entitled to ask for this information.

screening During employment

Checking and screening existing longer-term employees is more problematic than pre-employment screening:

• Screening will only be justified if security checks for certain classes of employee are required in light of events that have occurred since the employment commenced and where it is required by the position held by the employee.
• If an employee refuses to agree to a vetting procedure, this cannot be grounds for disciplinary action unless the company can show a specific and/or legal requirement that these checks must be made.
• Dismissal and/or disciplinary action should only occur if there is a firm and definitive requirement that the checks must take place. Dismissing any employee with over one year’s service for failure to allow the checks or as a result of the information obtained, brings serious risk of a claim of unfair dismissal.

Screening current and particularly long-serving employees creates much greater difficulties – particularly if it has never been agreed with the individual that such vetting or screening will be carried out. Written consent from the employee should almost always be secured, and an invasive screening process must only be undertaken where there are clear risks to the company in not doing so. Employers should identify the relevant job roles which present particular risk issues, and thereafter, any screening process must be applied uniformly to those roles (irrespective of the sex, ethnic origin, sexual orientation, disabilities, etc, of the incumbents of those positions).

Conclusion

The screening of potential employees should be carried out sympathetically. Screening should be designed to obtain only information which is specifically needed either to ascertain whether the potential employee is able to perform the job in question, or where there is a particular risk to the company which needs to be managed. Unless screening processes are appropriately tailored they are unlikely to uncover information relevant to a particular role or set of circumstances. Appropriate and effective screening processes are those designed with an objective in mind, and are not simply “dirt digging” missions.

For more information about employee screening, data protection or employment rights and protections of UK workers, contact:
E-mail: adele.martins@magrath.co.uk

All pages are copyright © of Roxby Media Ltd. British American Business is a Roxby Media publication - Disclaimer