Legal

Effective pre-employment screening

16 Apr 2019 By Hollie Whyman

What pre-employment screening checks should employers carry out on potential new employees to safeguard against future headaches? Hollie Whyman reports

Pre-employment screening is one of the most comprehensive and effective ways of ascertaining the suitability of job applicants and safeguarding against future HR problems. However, getting the screening process right can be a headache in itself; businesses sometimes face uncertainty as to the checks that can be made and the misconception that pre-employment screening is simply a waste of time. 

Right to work in the UK

Employers have a legal obligation to carry out checks to ensure an applicant has the right to work in the UK – they should also keep a record of the check. 

References and non-compete clauses

Employers will frequently make an offer of employment subject to ‘satisfactory references’. In the absence of the statutory requirement which applies in some regulated sectors, there is generally no obligation for a new employer to do so. However, it is advisable to seek at least one reference to verify work experience and potential suitability for the new job role. 

Employers should also check whether the applicant has any ‘non-compete’ clauses or other restrictions in their previous employment contracts which could limit their ability to work for the business. 

Medical checks

This is a check employers often tiptoe around, unsure if, when, and to what extent, they can ask applicants about their medical history. The rules here vary, depending on the stage in the recruitment process. 

Employers should not generally ask any questions regarding health or disability during the recruitment stage – including questions about the number of sick days taken at the applicant’s previous place of work. This is to avoid any potential discrimination against people with disabilities or health complications. 

However, there are exceptions to the rule. It is acceptable to ask questions to determine whether any adjustments are required for an assessment process, or to discern whether or not an applicant can do part of a job that is absolutely essential (for example, climbing or heavy lifting). Asking health questions is also permitted for the purposes of monitoring diversity, which should be requested and collected separately to the rest of the questions on applications. 

Once a job offer is made, employers can then ask about medical conditions that might affect the employee’s ability to do their job; or questions to determine if they need to make any reasonable adjustments – such as an adapted work environment or flexibility. Nevertheless, employers should be mindful not to later withdraw the offer because of a disability that comes to light. 

Background/criminal checks

Employers should only carry out criminal record checks if and to the extent this can be justified in relation to the job that the employer is recruiting for. Some professions have specific requirements for a Disclosure & Barring Service (DBS) check to be completed, for example those that involve children or vulnerable people. 

While there is nothing to prevent businesses from asking prospective employees about their criminal records if it is considered necessary and proportionate, this should ideally be done only once the successful applicant has been selected and employment has been offered pending reference checks. Businesses should also take care not to ask about ‘spent’ convictions, and ensure these do not have any bearing on a decision to employ someone. 

Businesses should also check any processing of personal data relating to criminal convictions is done in compliance with the GDPR, and that the requisite additional safeguards are in place. 

Investigating social media accounts 

Employers should take care when inspecting social media profiles, and it is advisable to only do so when there is a legitimate reason relevant to the job or position, such as where the employee will be a spokesperson or have significant public exposure. 

Employers should anyway be mindful of making decisions based on information found online, particularly if it involves a protected characteristic such as race, religion or belief, or sexual orientation. Reasonable steps should be taken to ensure the accuracy of any personal data found online. 

Hollie Whyman is a solicitor in the employment team at Fletcher Day, a City law firm

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