< Back

Share |

Vetting and Pre-Employment Checks: what do they mean for your business?

July 2013

In the UK

Employers often carry out pre-employment checks prior to making an offer of employment to an individual. Many employers will be concerned about criminal convictions and/or ongoing involvement in illegal activities. Indeed, in some industries it is a requirement that employers run checks to ensure that new hires do not have any criminal convictions.

Equally important are concerns about unsubstantiated or indeed false claims of experience on CVs and unexplained gaps in employment history. With the rise of social media, many applicants will have a significant online profile. It is tempting to use this in order to confirm what applicants have put on their CV. Companies should be aware, however, that there are risks to this.

Criminal records checks

A balance needs to be struck between protecting vulnerable groups of people and maintaining high professional standards in the service industries, as against ensuring that civil liberties are adequately protected. With this aim in mind, the Protection of Freedoms Act 2012 (PFA) came into force in September 2012. 

HandcuffsThe PFA introduced a new disclosure and barring service (DBS) which replaced the criminal records bureau. The DBS can carry out three levels of checks on employees, basic, standard and enhanced. Most companies, if they carry out criminal records checks at all, will use the basic check. This is only valid at the date of issue and does not contain any information about overseas convictions. 

The basic check does not always provide the required information and employers may, in any event, be wary of asking for the checks in light of the recent Court of Appeal Judgement in R(T) v the Chief Constable of Greater Manchester [2013]. Here, the Court of Appeal decided that complete disclosure of convictions and cautions through an enhanced criminal records check may breach the right to a private life guaranteed by the European Convention on Human Rights unless the convictions are relevant to the employee's suitability for employment. The decision is being referred to the Supreme Court so this issue is likely to be reviewed in the coming months.

Another thing that employers need to be wary of is that some convictions can be treated as 'spent' where the sentence was of a certain type and a period of time has elapsed since the conviction.  In the event that the employer comes across information regarding spent convictions, then this information should not be considered for the purposes of recruiting, or indeed continuing the employment of an employee.

Social media: pre-employment checks

Social media iconsIncreasingly, companies are using social media screening to access background information about potential recruits and in many ways this provides a good indicator of their suitability for the role and the threat they may pose to the security of the company's confidential information. Screening may also be useful to check whether current employees are disclosing information which may damage the company's reputation or using social media to bully or harass other colleagues. Companies should make it clear to prospective employees (probably on the application form) and current employees (perhaps in contracts/social media policy) that checks will be carried out. Companies should explain what form these checks will take and why they are considered to be necessary.

Screening should, however, be used sparingly; the Information Commissioner's Office specifically prohibits use of media screening for "arbitrary" checks on an individual. All companies will need to ensure they have good reason for conducting screening and that such screening only goes so far as is necessary and proportionate to achieve these aims. The level of screening which may be appropriate (if any) is likely to relate in part to the role the individual has within the company, so the role should be risk assessed and the appropriate level of screening then conducted. Equally, media screening should only be used if another method of finding or verifying information (eg contacting referees) cannot be used.

Organisations need to be aware that unless they are operating in a regulated sector or working with vulnerable areas of society, it is unlikely to be considered proportionate to carry out ongoing checks on employees as a matter of course. It may, however, be appropriate to check employees' social media use if the company has a reason to believe that its information is being disclosed or another employee is being harmed or upset by online comments.

Conclusion

Where any type of check is being carried out on an employee or applicant, they should be aware that this is being undertaken and companies should be wary about using checks indiscriminately. Tempting and easy as it may be to use social media to 'check up' on employees, this should be avoided and only those checks which have a legitimate commercial purpose should be carried out.

In Germany

Pre-employment checks are an important tool for employers but must comply with the German Federal Data Protection Act (BDSG) and other applicable legislation.  Pre-employment checks involving social media and health data, in particular, have been causing a great deal of controversy in Germany in recent months.

German flag

As a general rule, an employer has the right to collect and process all information required to allow it to make a decision about whether or not to employ an individual. Therefore, the balance of interests i.e. the employer’s legitimate interest in gathering all possible work-related information, as against the future employee’s privacy, must be considered.

In practice, this requirement allows employers to ask for and verify any information related to applicants’ education and personal qualifications. For example, a bank would have the right to ask an applicant whether he has a live finance-related criminal record.  Employers should, however, be careful not to fall foul of the German Equal Treatment Act by asking questions which might be considered to be discriminatory, 

Internet research

Employers are also allowed to collect information from publicly available sources such as web pages and public profiles from social networks. Most commentators, however, take the view that this does not include research on restricted access social network sites such as Facebook.

Health status

Employers may ask health-related questions and also conduct health examinations if the answer/result is actually relevant for the position in question. For instance, an examination to determine whether a professional driver is able to distinguish red from green lights would be fine. Examinations to detect an alcohol or drug addiction might also be permissible for many positions. The same goes for an AIDS (not HIV) test if the work includes an elevated risk of infection for co-workers or patients.

Medical screenIn no case, however, can an employer use medical examinations to collect information in answer to questions that the employer would otherwise not be able ask the applicant e.g. carrying out a pregnancy test. In addition, genetic testing is subject to the very strict rules under the Genetic Diagnostics Act.

If medical examinations are warranted, they should be carried out by qualified personnel and the results may only be given to the employer.

If you have any questions on this article or would like to propose a subject to be addressed by the Global Data Hub please contact us.

Yes or No on paper with pencil
Anna Furness

Anna Furness   

Dr. Stefan Alich

Dr. Stefan Alich   





Anna and Stefan look at the legal boundaries of pre-employment checks in the UK and in Germany.

"Many job applicants will have a significant online profile. Companies should be aware, however, that there are legal risks to using this profile to carry out pre-employment checks."