Just checking!

16 October 2006

The recruitment process is all about checking a candidate’s suitability for a particular post. In addition to validating their knowledge, skills and experience two other checks may be required; a criminal records check and a check on their eligibility to work in the UK.

Criminal records

The disclosure of criminal convictions is governed by:

Rehabilitation of Offenders Act 1974 ("ROA")
Data Protection Act 1988 ("DPA")
Police Act 1997 ("PA")

Whether you can check a candidate’s criminal history depends on the job they have applied for. This is because details of criminal convictions, including any alleged offences, are regarded as sensitive personal data under the DPA. Therefore, to justify the intrusion into the individual’s personal life at least one of the following conditions must be met:

1) The individual must give his express consent - Arguably, making disclosure a condition of employment is unlikely to amount to freely given consent and employers should seek to rely on one of the other conditions

2) The information is needed to comply with a legal duty - Certain professions within the law and finance are subject to criminal clearance, as are positions involving the care of children or vulnerable adults

3) The information is needed to protect the vital interests of the individual or another person – Some other positions may justify disclosure. For instance, it may be justified to ask a driver about any motoring offences for health and safety reasons or to request details of any prior convictions for posts requiring a high degree of trust and honesty to protect the financial interests of the company

If asking candidates to disclose details of their criminal convictions is justified employers must, when asking for the details, state whether or not the post is exempt from ROA. Positions which are exempt from ROA are listed in the Rehabilitation of Offenders Act 1974 (Exemptions) Order 1975 (as amended) and normally relate to matters of national security, the care of those considered to be vulnerable and to the administration of justice.

Under ROA certain convictions become "spent" after a specified period of time, depending on the nature of the offence. Once "spent" the individual does not have to reveal them unless the post is exempt. Candidates who apply for exempt positions can be asked to disclose both spent and unspent convictions. These positions are numerous and range from accountants, teachers and traffic wardens to nurses, dentists and directors of insurance companies.

Asking candidates to disclose the information is one thing, verification is another! The Criminal Records Bureau ("CRB") was established under the PA to enable employers to verify the criminal records of potential employees. The CRB currently only deals with disclosures in relation to posts which are exempt from ROA and offers two kinds of police checks:

Standard Disclosure
Enhanced Disclosure

Both will show the applicant’s current and spent convictions, cautions, reprimands and warnings held on the Police National Computer and information held on Government protection lists. Enhanced Disclosure, limited to positions involving regular contact with children or vulnerable adults, will also include information held by local police.

The PA also makes provision for Basic Disclosure, which will allow individuals to obtain a report which can be used for employment purposes confirming any "unspent" convictions. However, a date when this service is to become available has not yet been announced. In the meantime, applicants can consent to making a subject access request to the local police authority to obtain their records. However, it is worth noting that forcing an applicant to use this means is "enforced subject access" and in breach of the Employment Practices Data Protection Code.

Eligibility to work in the UK

It is a criminal offence to employ someone who has no right to work in the UK, leading to a fine of £5000 for each illegal worker found to have been employed. The Asylum and Immigration Act 1996 gives a statutory defence against prosecution to employers where they can show they have checked and copied certain original documents listed under the Act, such as a passport or an official document issued by the Home Office. The requirements though are quite specific and full details can be found at the Home Office website at www.ind.homeoffice.gov.uk.

Employers should not differentiate between which candidates are asked about their eligibility to work in the UK as this could amount to racial discrimination. Instead it should be made a part of the standard recruitment procedure for all positions, regardless of who the post holder will be.

Finally, remember that the DPA applies and comply with all the data protection principles, one of which is to ensure that the information obtained must be adequate, relevant and not excessive. This means that you should only obtain strictly necessary information at the point it becomes needed. Therefore, all applicants should be made aware at the initial stages of recruitment if either of these checks will be required but only of the successful candidate and not all who apply.