Employment Law Trends in 2023: Changes in the World of Work
We discuss employment law trends, evolving bills, and shifting responsibilities for employers. So, what does 2023 have in store?Learn More
September 30, 2022
It’s great news when your business becomes so busy that you need to hire an employee to keep up the good work. In this regard, it’s important to consider things like drafting an employment contract and arranging to pay PAYE to HMRC. In addition to this, one key consideration should be pre-employment checks.
Unfortunately, job applications can be a competitive and stressful process, leading to candidates at times feeling the pressure to apply ‘artistic licence’ to their credentials - or omit a part of their background completely. That’s why it’s important (and in some cases mandatory) to carry out some checks before your successful candidate starts in their new role.
Below are just some of the pre-employment checks you might want or need to carry out.
Employers have a duty to prevent illegal working in the UK which means you must conduct specific documentation checks. There are serious penalties to punish employers who flout this law, which extends to an unlimited fine and up to 5 years in prison. Even if you have carried out some checks but have not done them properly, you can face up to a £20,000 fine per illegal worker you employ. Ouch. It is not just the financial hurt either as your business details could be published as a warning to others. Put simply, it’s not the kind of PR you want.
A lot of employers get caught out by candidates who rely on their student visa to demonstrate their right to work. A visa might allow an individual to stay in the UK to study but restrict the number of hours they can work or prohibit them from working entirely.
You have probably heard of the Disclosure and Barring Service (formerly the Criminal Records Bureau), but did you know they have four different levels of checks? Not all roles need a DBS check but for some roles, it might be appropriate to carry out due diligence (for example, a security guard) and for specific industries, it is an offence not to have carried out a DBS check. Perhaps the most known example is a role which gives a person unsupervised access to children, but there are other less obvious examples such as dispensing opticians, chartered accountants and dental hygienists. It is always worth investigating if you should carry out a check and which one is most appropriate for the job.
Refusing to employ someone solely because of a non-relevant spent conviction could amount to unfair discrimination, so make sure you are aware of what level of DBS is required.
If you are employing a more senior role, such as a company director, you should consider additional checks. Anyone who has a bankruptcy order, debt relief order or bankruptcy restriction is banned from being a director. You might also want to check if they hold a position that could amount to a conflict of interest.
You can become personally liable for the company’s debts where you carry out company business on the instruction of someone who has been disqualified – better to check and avoid the risk.
You must remember to act proportionately when collecting information about people, especially their health data (which is a special category of data). A lot of employers still ask how many sick days a candidate has taken, despite all the Employment Tribunals about the issue! But some requests can be justified. For example, drivers can be prosecuted if they drive without meeting the DVLA standards of vision so you could require an eyesight exam. Your insurer might also require information about your employee for specific types of cover.
Think about when to ask someone for medical information. You might need to know if a candidate requires a reasonable adjustment to attend an interview but otherwise, it is unlikely to be appropriate to request medical information until you intend to offer the role to the candidate.
If you have an employee who will be managing your bank accounts or has access to your cash register (if anyone has those anymore?!) it could be appropriate to carry out a credit check.
Although it was the convention for a long time, there are few circumstances where you must obtain employment references (for example, where the Financial Conduct Authority requires you to). Don’t ask for reference or referee contact details unless you intend to follow up on the check.
Unless it’s in their old employment contract, most candidates’ previous employers can’t be forced to provide a reference or do not have to provide all the detail you have asked for. Is it worth asking at all?
It is good practice to carry out due diligence but remember that you must be able to justify any pre-employment checks which are not compulsory. Don’t do checks or collect information just because you’ve seen it on other application forms - think about why you are doing the check and if you really need to do it.
Where you do decide (or you have to) carry out a check, you should be clear with candidates about what checks you plan to carry out and how long you plan to keep the results. You also should decide what record of the check you should keep, you might just need a record that the candidate passed your check rather than retaining the documentation (it will help you minimise the personal data you hold about your staff).
Understanding when checks should, and shouldn't, be conducted can be a bit of a task. To simplify the process, we've put together an infographic that sets it all out in clear terms. Check it out...
Your first employee should be a really exciting phase for your business so if any of this makes you think it might be a bit much on your own, please get in touch – from employment contracts to privacy notices, we're here to help. Our employment lawyers are experts in making the world of work, work. Find out more about what we do for employers here.