Pre-employment checks guide

Pre-employment checks:
an employer’s guide
Guide
December 2013
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1 Pre-employment checks: an employer’s guide
Pre-employment checks: an employer’s guide
Contents
Introduction 2
1 What risks should employers guard against? 3
2 Circulating lists of high-risk candidates 5
3 Using social media to support recruitment 7
4 Employment references 9
5 Outsourcing and employment agencies 11
Appendix: Key legal issues relating to pre-employment checks 12

Introduction
Conducting pre-employment checks on job applicants
is an integral part of the recruitment process.1
This
guide provides advice to employers on how to
conduct such checks in a way that will support their
business objectives. Careless approaches to vetting
and screening risk employing the wrong people, with
resultant damage in terms of increased turnover and
costs, and lower morale. They also risk legal challenge,
which can undermine an employer’s reputation.
There are several reasons why fresh guidance on good
practice in conducting pre-employment checks is
needed:
• There is increasing public recognition of the need
for employers to adopt practices that are both legal
and ethical.
• Recruitment processes are being increasingly
influenced by the development of social media. Two
in five employers say they look at candidates’ online
activity or profiles in order to inform recruitment
decisions.2
The legal implications of shifting practice
in this area are not yet fully clear.
• The continued shift towards outsourcing means that
it may be unclear which organisation is responsible
for conducting pre-employment checks.
• Traditional methods of checking out applicants’
credentials through following up employer
references may be of limited value since many
employers are reluctant to make negative comments
for fear of legal challenge.
• Poor recruitment practices may be unfair to
individual applicants, for example by discriminating
against members of particular groups or by giving
weight to inaccurate or misleading information.
The following guidance draws on discussion with HR
professionals and employment lawyers with extensive
experience in conducting and advising on recruitment.
It takes account of the law on discrimination and
data protection, which are core to this area and
which are under constant review by the courts. CIPD
members can access more detailed advice on legal
issues (particularly in relation to discrimination and
data protection) at the ‘Employment law FAQs’ section
of the CIPD website. An outline of other key areas
of law relevant to pre-employment checks, including
in relation to criminal records, is at the Appendix.
Employers may also need to take account of statutory
requirements applying to recruitment in their specific
sector (for example finance).
However, the core principles underlying the
guidance are relevant to all sectors. In conducting
pre-employment checks, employers should aim to:
• protect the organisation
• protect clients and customers
• be fair to all candidates
• ensure non-discrimination and compliance with data
protection law
• rely on fact, not opinion
• validate information to be relied on
• ensure relevance to the post to be filled
• see the candidate in the round
• be transparent and open to candidates about the
checking process.
Good practice action points are listed at the end of
each section.
The CIPD is extremely grateful to all those people
who have helped in the production of this guide, and
particularly to members of the advisory committee of
the CIPD Recruitment Forum, whose experience has
been invaluable. Special thanks are due to Jane Mann
and her colleagues at Fox Williams for producing the
Appendix.
12
1
For a general introduction to the processes of recruitment, selection and induction, see the Acas advisory booklet at http://
www.acas.org.uk/media/pdf/l/e/Recruitment_and_induction_(October-2012)-accessible-version-may-2012.pdf
2
Social technology, social business? at http://www.cipd.co.uk/hr-resources/survey-reports/social-technology-business.aspx

1 What risks should employers guard
against?
Conducting pre-employment checks is sometimes
referred to as ‘vetting’. The purpose is to establish
eligibility, including in relation to eligibility to work in
the UK and criminal records: it sets minimum criteria
for recruitment. ‘Vetting’ originally referred to the
requirement that a horse be checked for health and
soundness before being allowed to race; it can be
distinguished from screening, which is about getting
the right fit in relation to, for example, skills and
experience.
Having carried out an appropriate selection process
to determine suitability for the role, employers
need to conduct due diligence in order to find
out if applicants might bring the organisation into
disrepute, or cause difficulties with colleagues,
managers, customers or suppliers. Failure to establish
relevant information could mean that HR has failed
to show due diligence: vetting is a key element
in conducting ‘due diligence’ in relation to the
recruitment process.
Specific risks to be guarded against will vary from one
sector and one employer to another. For example:
• In the retail sector, theft by employees is not
infrequent and employers will want to satisfy
themselves that job applicants are honest.
• The NHS Employment Check Standards, issued by
NHS Employers, outline the employment checks
employers must carry out before appointing staff
into NHS positions, across England. Failure to
comply could potentially put the safety, and possibly
the lives, of patients, staff and the public at risk.
• The Code of Practice on the Security Screening
of Individuals Employed in a Security Environment
(BS7858), reissued in April 2013, requires
such individuals to have undergone a financial
background check.
Specific checks required may include individuals’
background in areas other than employment,
including, for example, identity, driver’s licence,
address, media and credit checks.
Employers have wide discretion, within the law, to
decide whether or not to recruit a particular candidate.
They need to use the selection process, including
vetting, to find the best person for the job, taking into
account all the available evidence. Negative factors
that might influence the decision could, for example,
include:
• theft
• bullying
• assault
• fraud
• failure to observe safety requirements.
Specific disciplinary offences may provide grounds
for an employer to exclude an individual from
employment. Examples from the construction sector
might include, for example, having a mobile phone
on site (if expressly forbidden for health and safety
reasons); failing a drugs or alcohol test; fighting; being
caught with incendiary materials such as matches; and
misuse of swipe cards.
Some factors to be taken into account may be more
subtle or subjective. Particularly in senior posts, it may
be important to establish that there is a good ‘fit’,
for example in terms of attitudes and/or experience,
between the candidate and the team to which they
would be recruited. In some instances employers may
give equal weight to candidates’ attitude as to their
skills and qualifications.
Many people admit to having lied on their CV,
particularly about their experience, qualifications
or salary. Illegal immigrants may use false
documents. Employers can help to manage
the risks of candidate dishonesty by using the
following phrase on application forms:
‘I declare that the information given in this form
and in any accompanying documentation is true
to the best of my knowledge and belief and
give my permission for enquiries to be made
to confirm qualifications, experience, dates of
employment, right to work in the UK and for
the release by other people or organisations of
necessary information to verify the content. I
understand my application may be rejected and/
or I may be dismissed following appointment if I
have given any false or misleading information or
have withheld any relevant details.’

Guidance on good practice is for employers to:
• base recruitment decisions on evidence
• be clear what specific risks they are seeking
to guard against
• ensure that any negative evidence is based
on fact and not simply opinion
• weigh such evidence against other
information, in order to have a more
complete picture of the candidate’s
suitability
• consider the evidence in relation to the
particular post to be filled.
The CIFAS Staff Fraud Database is a data sharing
scheme that enables responsible employers to
record proven cases of staff fraud in order to
prevent the perpetrator moving unchallenged
to a new employer to commit further fraud. An
employer accesses the database to:
• screen applicants or current employees, to
ensure that there are no staff fraud records filed
by other participating organisations.
• record data about identified staff fraud cases.
The Staff Fraud Database is not limited to
permanent staff so can be used to vet contractors
and agency workers, offering organisations
additional protection in these high risk areas.
The launch of the database was carried
out in consultation with the Information
Commissioner’s Office, the Financial Conduct
Authority, the CBI, the Trades Union Congress
and the CIPD. For further information contact
staff.fraud@cifas.org.uk

2 Circulating lists of high-risk
candidates
‘Blacklisting’ is narrowly defined by statute (see box)
and is clearly unlawful. The Employment Relations
Act 1999 (Blacklists) Regulations 2010 apply only to
situations where workers’ names are put on a list
because of their union membership or activity.
If a list is not compiled for the purpose of
discriminating against trade union members or those
who have taken part in union activities but for a
legitimate purpose (as in the recent case of Maunders
v Proteus Well Services Ltd and others ET case no
1810036/2010 where the reason the claimant had
been included on a security database was found to be
his aggressive behaviour towards a member of security
staff), the list will not be a blacklist as defined, even if
some of those on the list are trade union members.
However, it is important to be clear what is, and is not,
a blacklist.
There is a wider question whether it is legitimate for
an employer to put the names of former employees
onto a list that can be accessed by other employers.
It would for example be highly problematic to include
people’s names on such a list simply because they are
regarded as ‘trouble-makers’. Concerns may also arise
in relation to data protection; for example:
• the requirement to tell individuals how information
about them is used, and to allow them access to
that information
• the difficulty of reliably verifying that a candidate’s
identity is the same as one on a list
• the difficulty in ensuring that information is accurate
and that reasons for inclusion are verified
• events which occurred several years previously are
less likely to be relevant to a candidate’s suitability
later on.
There may however be cases, particularly where the
employer owes a duty of care to vulnerable people,
where the production of a list is legitimate. Within
a sector such as healthcare, where the duty of care
to patients is of overwhelming significance and
the NHS has by far the major share of the market,
individual trusts might wish to share information about
employees where there is evidence of the kind of
misbehaviour that would put patient safety at risk.
In such cases, the duty to share information might not
be limited to the employer, but might apply to any
upstream body such as the NHS, or local authority,
or client, whose reputation is liable to be affected by
recruitment practices in the sector and is in a position
to exercise authority or offer advice to employers.
A critical element in all such cases will be the existence
of evidence of actual wrongdoing. Where evidence
is already in the public domain, it may be legitimate
to draw this to the attention of an employer seeking
a reference. It will not be fair to the individuals
concerned, however, to make widely available
information based solely on suspicion, or hearsay, or
derogatory opinions.
Where vulnerable people are at risk, in the health,
education or care sectors for example, employers
have a duty of care to protect them. So an employer
that has evidence that a head teacher has formed an
inappropriate relationship with a pupil, for example,
What is a blacklist?
This is a list containing details of people who are
or have been members of a trade union or who
are or have taken part in trade union activities
and compiled with a view to it being used by
employers or employment agencies for the
purposes of discrimination in treating them less
favourably on grounds of union membership or
activities.
The Department for Business, Innovation and
Skills defines ‘blacklisting’ as the ‘systematic
compilation of information on individual trade
unionists [used by] employers and recruiters to
discriminate against those individuals because of
their trade union membership or because of their
involvement in trade union activity’.
The question whether an applicant has been
unfairly discriminated against on grounds of
union activity will be a question of fact. So if an
applicant is rejected as a result of being placed
on a list because of their previous involvement
in industrial action, this might well be regarded
as blacklisting. However, BIS advice suggests that
involvement in unofficial industrial action would
not qualify for protection.

will wish to record that evidence. If the employer
is approached for a recommendation by another
employer contemplating recruiting that head teacher,
it would be a failure of responsibility to other children
not to draw that other employer’s attention to the
evidence of misbehaviour.
In summary, producing a list of people who are not
judged suitable for further employment in a specific
sector will not necessarily be unlawful, but should be
considered only in strictly limited circumstances:
• Producing or using lists of individuals
in order to discriminate against them
because of their trade union membership
or involvement in trade union activity is
unlawful and should in no circumstances be
undertaken.
• Producing or using lists of individuals
in order to safeguard the welfare of
vulnerable groups is unlikely to be
unlawful. However, great care should
be taken in the compilation or use of
such lists, particularly having regard
to legislation on data protection and
discrimination.3
• Where potentially damaging information
about individuals is shared with other
employers, it is good practice to make clear
who has been responsible for sharing the
information and can be approached for
further details if necessary.
• Individuals should be made aware if their
name has been added to the list, and given
the opportunity to challenge it.
• In any case where an individual is refused
employment because their name is on a
list, that information should be shared with
them.
• It will not be fair to individuals to make
widely available information based solely
on suspicion, or hearsay, or opinion.
3
3
See Guidance for Employers on Sharing Information about Healthcare Workers where a Risk to Patient Safety has been Identified
at http://www.nhsemployers.org/EmploymentPolicyAndPractice/UKEmploymentPractice/Pages/Guidanceforsharinginformation.aspx
Since this is a controversial and developing area of
law, specific legal advice should be taken on the
compilation, distribution and use of such a list, in
light of the particular circumstances in which it will be
used. Further developments in the law, regulation and
legislative policy can be anticipated.

3 Using social media to support
recruitment
There has been a marked increase in the proportion
of employers making use of social media to research
candidates’ backgrounds. CIPD research suggests that
6% of employers ‘always’ look at job applicants’ online
activity or profiles to inform recruitment decisions,
and another one in three do so at least sometimes.
Using a search engine or social media in this way is
not necessarily unlawful. However, it is important to
balance employers’ interests with those of individual
applicants, and employers should be cautious about
the way in which they approach such searches.
Bear in mind that information on the Web may not
always be accurate. Responsible organisations should
allow candidates to respond to any information which
has been obtained through these mechanisms. Then,
appropriately to the role, organisations should take
account of any mitigating facts or explanation of
inaccuracies before withdrawing offers.
To avoid risk of legal challenge, employers should
make applicants aware at an early stage that they
may conduct such searches. Employers should take
care to observe the Employment Practices Data
Protection Code 2002 published by the Office of the
Information Commissioner, and ensure that searches
are targeted on finding information relevant to the
decision whether or not to employ, and are not simply
a ‘fishing expedition’. Employers should also bear in
mind that the law on discrimination applies equally to
online and offline checks (for example interviews).
Some employers may choose not to use online
searches to assist in pre-employment vetting, on
grounds of relevance or because it may disadvantage
candidates who do not have access to or do not use
social media.
Use of social media is developing rapidly and it is
currently difficult to lay down hard-and-fast rules for
employers. It is currently unclear how far a ‘right to
privacy’ applies in respect of social media. However,
law and practice in other EU countries and in the
United States is currently more restrictive than in the
UK and it is realistic to assume that UK law will move
further in this direction.
LinkedIn is used for mainly professional purposes,
but some forms of social media, including for
example Yammer and Twitter, may have mixed public
and private usage. One half of respondents to a
CIPD survey of social media in 2013 said that they
separated their personal use of social media from
their professional use. Both Twitter and Facebook
have open and closed access. People who upload
material to open-access sections of social media may
reasonably anticipate that this source may be searched
by potential employers.
Data protection
The Data Protection Act states that anyone who processes personal information must comply with eight
principles, which make sure that personal information is:
• fairly and lawfully processed – candidates should be aware that checks may take place
• processed for limited purposes – employers should be clear about the purpose of the checks. This will help
them to decide what kind of information should be collected
• adequate, relevant and not excessive – the monitoring and collection of information should be limited to
what is relevant in the circumstances of each case
• accurate and up to date – employers need to be sure that the profiles they access do genuinely belong to
the person being vetted
• not kept for longer than is necessary – employers should not retain information if they do not intend to
use it in future. Clear retention schedules should be developed
• processed in line with individual rights – in particular, individuals should be able to exercise their right of
subject access to obtain copies of the information held
• secure – the information must be protected against external threats (for example hacking) and access
to the data within an organisation should be limited to those staff who have a business need to see the
information
• not transferred to other countries without adequate protection.

The implications of data protection legislation are likely
to become clearer over time. Meanwhile, employers
should consider applying the following general
principles if they wish to access candidates’ social
media profiles:
• Respect the same restrictions that apply to
offline checks (for example interviews) in
relation to discrimination.
• Take reasonable steps to ensure the
accuracy of information accessed online.
• Distinguish between social media for
mainly private purposes and social media
for mainly professional purposes. So use
of LinkedIn is legitimate but don’t use
Facebook.
• Personal data may be accessed insofar as
it is relevant to suitability for the role and
relates to candidates’ personal capabilities
and skills, education and experience.
• Social media searches should be used to
look for specific information and not as a
general trawling exercise.
• Social media searches should be carried
out as late in the recruitment process as
reasonably practical.
• Applicants should be informed at the
outset if online sources may be used to
collect information about them.
• Information generally available online (for
example through Google) can be used.
• However, employers should collect no
more personal information than is needed,
and should not collect information that is
irrelevant or excessive.
• Applicants should be given an opportunity
to respond to material findings from online
searches, where the findings form part of
the decision-making process.
• Personal data collected during the
recruitment process should not be kept for
more than two years where the applicant
was not hired.
• Employers should develop a clear policy
towards the use of social media for
recruitment purposes, in consultation with
employees or their representatives.

45
4
Spring v Guardian Assurance plc [1994] IRLR 460.
5
http://www.ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Data_Protection/Detailed_specialist_
guides/subject-access-code-of-practice.PDF
4 Employment references
Organisations can request employment references
to establish the facts of employment, one of which
should be from the most recent employer, supervisor
or educational establishment. Good practice is only to
seek employment references once a job offer has been
made, not prior to interview. Allowing interviewers
to read references prior to meeting candidates could
be interpreted as allowing the potential for unfair
discrimination. Some universities refuse to provide
employment references prior to a job offer being
made.
There is no automatic right to a reference, except
in organisations covered by the Financial Conduct
Authority. Care must also be taken if refusal to supply
a reference could be seen to be discriminatory, for
example as victimisation after the individual has
complained about discrimination. However, it has been
stated by the House of Lords4
that employers have
‘at least a moral obligation’ to provide references.
Employers usually provide references since:
• There may be an express or implied contractual
term that the employer will provide a reference. This
may arise if it is normal practice to give a reference
in that type of work and it would be unreasonable
to expect a new employer to take on the employee
without one.
• A refusal could mean adverse inferences being
drawn about the employee concerned.
Employer references are often said to be of limited
use since typically they may simply confirm that the
candidate worked for the organisation between
specific dates. Many employers fear they may be sued
if they offer a negative comment that can be shown to
be incorrect. Such fears can, however, be over-stated.
The key issue to bear in mind is that employers are
under a duty of care when providing a reference to
provide one which is true, accurate and fair and does
not present facts so as to give a misleading impression
overall, including by omission.
Moreover, there are downside risks in providing ‘bare
minimum’ references. A former employer may be
exposed to a negligence claim from a subsequent
employer if they fail to reveal something which
ultimately causes the new employer loss. If an
employee leaves with serious questions hanging over
their performance or conduct, or if these concerns
arise after the employee has left, the employer should
disclose the issues accurately to any prospective new
employer. However, the employer should also be
careful to make absolutely clear if the allegations have,
or have not, been investigated.
Case law has established that:
• References must give all, not part, of the history of
the person: it is unfair to give partial facts if those
result in the offer being withdrawn.
• References must not conceal facts from the
employer offering employment since they could sue
for misleading information which has caused some
detriment.
• References should give facts, not opinions. For
example, a reference might say: ‘X was employed
from … to …’. It might also include job title, salary
and sickness absence (excluding any absence
relating to disability or parental leave).
References might also include factual information
bearing on the employee’s performance, integrity,
relevant personal information and reasons for leaving.
Factual evidence must always be available to support
any such statements in a reference.
Data protection legislation specifically excludes the right
of the individual (data subject) to obtain a reference
from its author. However, employment tribunals are
increasingly insisting that phrases which caused the
withdrawal of the offer should be shown to the
applicant. There is no exemption for the organisation
which received the reference. However, they may be
able to withhold information which is also the personal
data of the author if it is reasonable to do so. In some
cases it will be reasonable to withhold the author’s
name but not the contents of the reference itself. The
Information Commissioner has published a subject
access code of practice which includes guidance on
providing individuals with copies of references.5

References should be followed up, and the fact
that this has been done checked by internal audit.
Telephone references, or notes made from a follow-up
conversation, can be viewed by the applicant for a
fee, since the organisation is the data controller and
the applicant is the data subject. Academic references
should be requested if particular qualifications
are cited in person specifications as necessary for
post-holders. Universities should be able to confirm
that a particular degree was awarded, providing they
are given precise names (candidate, course) and dates.
In addition to employer references, other checks can
also be undertaken as part of a pre-employment
screening process to obtain a rounded picture of
whether someone is a fit and proper person to
undertake the role to be filled (see section 1).
Good practice in relation to references can be
summarised as follows:
Informal conversations
An employer may wish to follow up a formal
reference on a candidate by telephoning a previous
employer and asking specific questions. Caution may
however be needed in interpreting what is said in
such a conversation. The employer is speaking to
someone they have probably never met and who is
in effect a total stranger. Where a conversation takes
place between employers within the same sector or
geographical area, there may be a basis for greater
familiarity or confidence in what is said, but equally
there may be a risk of ‘groupthink’ which could
unfairly prejudice a candidate’s standing.
Where potentially damaging information about
candidates’ history is referred to in informal
conversation, good practice suggests that:
• Employers should ensure that references
they supply are true, accurate and fair in
substance.
• References should offer facts, not opinions.
• References should mention negative issues
such as gross misconduct or events giving
rise to a disciplinary process in a way which
is overall accurate and correct.
• Employers should seek employment
references once a job offer has been made,
not prior to interview.
• References should be read with a positive
mindset, and not seen simply as an
opportunity to pick holes or find fault.
• Applicants should be shown phrases which
have caused the withdrawal of an offer.
• It should not be used as a substitute for
the employer making their judgement: the
employer has to take responsibility for
making their own decision.
• Such evidence needs to be weighed against
evidence from other sources and should be
used to support a balanced decision, not as
a shortcut to replace the employer’s own
judgement.
• An individual’s circumstances may change
and it will generally be appropriate to
check out adverse inferences by raising
them with the individual concerned.

5 Outsourcing and employment
agencies
CIPD surveys suggest that half of all employers see
recruitment agencies as an effective method of attracting
candidates. Recruitment agencies fulfil an essential role
in the UK’s flexible labour market and the recruitment
sector has worked hard in recent years to maintain its
reputation and promote good employment practices.
Particular issues in relation to pre-employment checks
can arise, not only for employers who use employment
agencies, but more generally in managing the supply
chain. Some companies offer an employee vetting
service independent of labour supply, whereby they are
engaged at the offer stage and the candidate supplies
personal details to be checked by the third party on
behalf of the employer. HR and recruitment consultants
may also act as intermediaries, for example by
supplying vetting specialists to sit alongside employers’
payroll teams.
Baseline checks might include establishing the right to
work in the UK, identity and reference checks in order
to validate skills and experience. Employment agencies
may also offer specialist help in conducting the detailed
checks required in specific sectors such as finance or IT.
Although employers may believe they can avoid the
need to engage in time-consuming statutory and other
checks by using the services of employment agencies,
they cannot protect themselves against possible
damage to their reputation by distancing themselves
from the recruitment process. Employers should have
contracts in place with employment agencies to
guarantee data security and quality.
Where employers use employment agencies or other
intermediaries to help recruit workers, they should:
Labour-only subcontractors
The Ethical Trading Initiative (ETI) is an alliance of
companies, trade unions and voluntary organisations
that aims to improve the lives of poor and vulnerable
workers across the globe who make or grow consumer
goods. The ETI has published a base code that draws
on ILO conventions and contains nine principles, of
which the eighth requires that ‘Regular employment
is provided’. Paragraph 8.2 says that employment
regulations ‘shall not be avoided through the use of
labour-only contracting [or] subcontracting…’.
Because labour-only workers are self-employed,
contractors pay no National Insurance Contributions
(NICs), sick pay or holiday pay. The Construction Industry
Scheme (CIS) is a set of special rules for handling
payments for construction work that contractors make
to subcontractors and applies to all construction work
carried out in the UK. HMRC publishes an Employment
Status Indicator (ESI) tool that enables an employer to
check the employment status of an individual or group
of workers – that is, whether they are employed or
self-employed for tax, NICs or VAT purposes.
Labour-only subcontractors and their workers will
generally be self-employed, in which case the issue
of pre-employment vetting will strictly not arise. But
clients and contractors will want to:
• Choose a reputable agency that takes steps
to protect its own reputation (for example
by seeking to recruit local labour, or to
guard against health and safety risks by
asking the right questions of jobseekers).
• Agree what specific pre-employment checks
are necessary and appropriate, ensuring
that these are non-discriminatory and
relevant to the job(s) to be carried out.
• Specify in a service-level agreement with the
supplier what checks are to be carried out.
• Be clear about the respective responsibilities
of client and agency, particularly in relation
to vetting: if in doubt, duplication is
preferable to leaving gaps.
• Be clear about the employment status
of staff supplied by an agency: are they
employed by the agency or the employer?
• Ensure that appropriate checks are in place
for both permanent and temporary staff.
• Be aware of any secondary suppliers and
establish which agency takes responsibility for
the integrity of the vetting process as a whole.
• be confident that labour-only
subcontractors are reputable
• incorporate in commercial contracts a
requirement that subcontractors should follow
the guidance on good practice in this guide
• ensure that labour-only subcontractors
meet their legal obligations, including
where appropriate under the Construction
Industry Scheme.

Appendix
Key legal issues relating to
pre-employment checks
(A) Right to work in the UK
Employers are subject to statutory penalties for
employing foreign nationals who do not have
lawful permission to work in the role in question.
This is to incentivise and enforce good prevention
of illegal working practice. By inspecting and
copying prescribed identity and status documents
in accordance with a code of practice, employers
acquire a statutory excuse from penalties unless
they knowingly employed the illegal worker.
Licensed sponsors of migrant workers under
the Points Based System must adhere to good
prevention of illegal working practice; failure to
do so can be a breach of licence terms resulting
in the downgrading or revocation of the sponsor
licence.
Statutory basis of penalties and excuses
Section 15 of the Immigration, Asylum and
Nationality Act 2006 (the 2006 Act) [http://bit.
ly/17tVfQm] defines an illegal worker as a person
aged 16 or over who is subject to immigration
control and not allowed to carry out the work
in question. Illegality may arise because the
worker has not been granted leave to enter or
remain in the UK, or their leave is invalid, has
expired or been cancelled, or does not permit
the employment in question. The 2006 Act sets
out a civil penalty regime whereby a penalty of
up to £10,000 per illegal worker can be imposed
on an employer following service of a Notice
of Liability (NoL). The penalty is calculated on a
sliding scale, with provision for reductions in each
of the following cases: where partial checks were
carried out, where the employer self-reported
the breach, where the employer subsequently
co-operated with the Home Office investigation,
and for first and second (but not subsequent)
breaches by the employer. In the first instance of
illegal working, depending on the circumstances,
the employer may receive a warning letter in
place of the penalty if partial checks were carried
out. This is the published framework; it is not
unusual for the Home Office to be more lenient
in cases where the employer’s breach clearly
arose from an oversight or lapse from generally
good practice. This flexibility is due to be reduced
as a result of recent consultation proposals – see
below.
Actual knowledge of illegality defeats the
statutory excuse. Under section 21 of the 2006
Act [http://bit.ly/1gkCxEl], it is a criminal offence
to knowingly employ an illegal worker. Criminal
penalties include imprisonment for up to two
years for complicit employers, and an unlimited
fine. The 2006 Act applies to employment which
commenced on or after 29 February 2008.
The previous penalty regime under the Asylum
and Immigration Act 1996, which carries a
strict liability criminal penalty only, still applies
to employment which commenced between
27 January 1997 and 28 February 2008.
Pre-employment checks: process
Procedure for carrying out right to work
document checks sufficient to establish the
statutory excuse is set out in Home Office
guidance published from time to time.
Overview
The current full guidance for employers on
preventing illegal working in the UK (May 2012)
[http://bit.ly/14A5Ra] sets out a three-step process
for inspecting and copying documents. In order
to acquire the statutory excuse, checks must be
completed prior to employment commencing.
Acceptable documents
The three-step process cross-references two
lists of acceptable documents, A and B. In each
list, there are alternative single documents and
specified combinations of two documents.
The guidance warns against asking for more
documents than those specified, except where
there is a need to explain a discrepancy (see
below).
List A documents demonstrate that the
holder is not subject to immigration control, or
has no restriction on the length of their stay
or on the work they may do. If checked and
copied correctly, List A documents evidence an
ongoing right to work in the UK, and establish

the statutory excuse. Single List A documents
include a full British passport, an EEA passport,
a permanent residence card issued to the family
member of an EEA National and a biometric
residence permit issued by the Home Office,
showing that the holder has ‘settlement’ or
‘indefinite leave to remain in the UK’. Document
combinations include an official document issued
by the UK Government showing the holder’s
NI number and name, together with a UK birth
certificate naming the holder and at least one
parent.
List B documents establish a time-limited
right to work in the role in question for up to
12 months. They must therefore be requested
at intervals during employment, as well as
at the pre-employment stage. Examples of
single documents include a passport of travel
document endorsed to show that the holder is
allowed to stay in the UK and to do the work
in question, or a biometric residence permit
issued by the Home Office indicating the same.
Document combinations include a document
issued by a previous employer or Government
agency showing the National Insurance number
and name of the holder, together with a letter
issued by the Home Office or one of its previous
agencies to the holder or employer or prospective
employer certifying that the person named can
stay in the UK and do the work in question.
The three-step checking process
The checker must be an officer, member or
employee of the employing organisation. The
checking process cannot be outsourced.
Step 1: You must request and review one of
the single documents, or two documents from a
specified combination, from either List A or List B.
Only original documents are acceptable.
Step 2: You must take all reasonable steps to
ascertain that the document is genuine, relates to
the holder and permits the work in question. This
includes:
• checking photographs for consistency of
appearance
• cross-checking consistency of dates of birth
• checking expiry dates have not passed on
documents presented
• ensuring that UK Government endorsements
show that the work in question is permitted,
and not prohibited. This includes the number
of hours worked; for example, full-time
students in Tier 4 may work, but are restricted
to 20 hours per week in term time
• require reasonable explanation, with additional
evidence, of any discrepancy (for example
name change on marriage), and
• satisfy yourself that the documents are
genuine, have not been tampered with and
belong to the holder.
Step 3: You must take and retain a copy of
the relevant page or pages of the document in
a permanent format which cannot be altered.
The guidance gives the example of a photocopy
or scan. It also specifies that in the case of a
passport or other travel document, the following
parts must be photocopied or scanned:
• document’s front cover and any page
containing the holder’s personal details. In
particular, you should copy any page that
provides details of nationality, includes
photographs, date of birth, signature, date of
expiry of biometric details, and
• any page containing UK Government
endorsements showing that the holder has
permission to be in the UK and has the right
to carry out the work in question.
All other documents, including both sides of the
biometric residents permit, must be copied in full.
It is recommended that the date of copying
is recorded on the copy. Each copy must be
retained throughout the duration of the person’s
employment and for two years post-termination.
Outcome of checks
An employer has the statutory excuse against a
penalty where its checker has carried out steps 1
to 3 and satisfied themselves that the documents
are genuine, relate to the holder and establish
the right to work in the role. If it later emerges
that a document was false, the statutory excuse
still applies, and there will be no penalty, unless
the falsehood would have been ‘reasonably
apparent’ to a person untrained in identifying
false documents.
In certain limited circumstances, the Home
Office’s Employer Checking Service will verify an
applicant’s right to work and must be contacted
via an email request form.
Prospective employees should be given
reasonable time to produce documents, but
an employer must not allow employment to

commence until they are received, checked and
found to be satisfactory.
When presented with an apparently false
document or document not relating to the holder
during a pre-employment check, an employer
should report the matter to the Home Office.
Avoiding racial discrimination in recruitment
Prevention of illegal working checks should be
carried out in a non-discriminatory manner,
avoiding any assumption about race, nationality
or the right to work based on criteria other
than the prescribed checks. A consistent
approach should be applied to all applicants. The
Government published a Code of Practice on
avoiding racial discrimination in recruitment in
2008 [http://bit.ly/K1iXuk]. Breach of the Code
is admissible in evidence before the employment
tribunal.
Contractual considerations
Offers of employment should always be
conditional on the candidate providing
satisfactory evidence of the right to work in the
role offered.
Public consultation on strengthening and
simplifying the civil penalty scheme
In August 2013 the Government consulted on
proposals intended to ‘strengthen and simplify’
the civil penalty regime [http://bit.ly/19OmXXX].
It published the results of the consultation in
October 2013. Proposals include increasing
penalties (the maximum penalty per illegal worker
being doubled to £20,000), narrowing the
circumstances in which a warning letter is issued
in lieu of a penalty, and dispensing with annual
re-checks in favour of re-checks linked to expiry
dates. Some attempt to meet concerns raised
by respondents is apparent in the Government’s
published conclusions. Implementation of the
changes is due in 2014.
(B) Criminal records checks
An employer may request a criminal records
check processed through the Disclosure and
Barring Service (DBS) as part of the recruitment
process. These checks are designed to assist
employers in making safer recruitment and
licensing decisions.
General position
The Rehabilitation of Offenders Act 1974 (ROA)
sets out the principal position on the treatment
of individuals with criminal records [http://bit.ly/
GMUZpp]. Subject to certain exceptions, a person
who has been convicted of a criminal offence but
who does not re-offend during a specified period
from the date of conviction (the rehabilitation
period) is considered to be rehabilitated and
their conviction becomes ‘spent’. Unless one of
the exceptions applies, they will be entitled to
hold themselves out as having a clean record. It
should be noted that during the rehabilitation
period, the conviction is ‘unspent’ and should be
disclosed in response to a request for details of
the individual’s criminal record. The length of the
rehabilitation period depends on the sentence
imposed, not the nature of the offence. Prison
sentences of more than two and a half years
never become spent.
Exceptions
The Rehabilitation of Offenders Act 1974
(Exceptions) Order 1975 (SI 1975/1023) (the
Exceptions Order) [http://bit.ly/1achgUA]
identifies the circumstances when a conviction
will not be treated as spent, and must therefore
be disclosed. These circumstances concern
applications by an individual for an excepted
occupation; to hold an excepted office; and to
join an excepted profession. The Exceptions Order
identifies the exceptions, which fall into five
broad groups:
1 professions
2 those employed to uphold the law
3 certain regulated occupations
4 those who work with children, provide care
services to vulnerable adults or who provide
health services, and
5 those whose work means they could pose a
risk to national security.
A person who falls into a category of the
Excepted Order may be asked whether they have
any spent and/or unspent convictions, known as
asking ‘Exempted Questions’. These questions
must be asked for the purpose of assessing the
applicant’s suitability for employment, and at
the time they are asked the individual must be
informed that they are obliged to disclose spent
convictions (article 3 of the Exceptions Order)
[http://bit.ly/16T4rnb]. Unlike when dealing with
individuals who do not fall within the Exceptions
Order, when answering Exempted Questions,
the applicant has a legal obligation to reveal
spent convictions. Failure to answer or give
truthful information is a valid reason to withhold
employment, or to dismiss an individual.

Those applicants who fall within the scope of the
Exceptions Order qualify for checking through the
DBS by means of a standard or enhanced DBS
certificate (see below).
Process
To complete the criminal records checks, one
option is for an employer to provide the applicant
with a DBS application form to complete and
return, along with documents proving identity.
Once the check has been processed by the DBS
and completed, the individual will receive a DBS
certificate.
There is a provision for three levels of disclosure
to be provided by certificate: (1) standard
disclosure; (2) enhanced disclosure and (3)
enhanced disclosure with list checks.
The standard check (£26) is available for certain
specified occupations, licences and entry into
certain specified professions. These are listed
in the Exceptions Order. It contains details of
all spent and unspent convictions, cautions,
reprimands and final warnings from the Police
National Computer.
The enhanced check (£44) is available for
those carrying out certain activities or working
in regulated activity with children or adults;
applicants for gaming and lottery licences; and
judicial appointments. These are listed in Part V
of the Police Act 1997 [http://bit.ly/19BUmeu].
It contains the same Police National Computer
information as the standard check, as well as a
check of police records held locally.
An enhanced with list check (£44) is only
available for those individuals who are in
regulated activity and a small number of positions
listed in Police Act regulations (for example,
prospective adoptive parents). It contains the
same Police National Computer information
and check of police records held locally as an
enhanced check, but in addition, will check
against the children and/or adults barring lists.
It is important to note that criminal record check
applicants must be 16 or over. Jobs that involve
caring for, supervising or being in sole charge
of children or adults require an enhanced DBS
check. This includes checking whether someone
is included on the two DBS ‘barred lists’ of
individuals who are unsuitable for working
with children and/or adults. Checks for eligible
volunteers – anyone who is not being paid and/or
is not only looking after a close relative – are free
of charge.
Alternatively, individuals can now join the
Update Service, putting them in greater control
of their information, allowing them to reuse the
DBS certificates when applying for similar jobs.
Individuals can choose to subscribe to the Update
Service that the DBS has launched. This will keep
their DBS certificate up to date, allowing it to be
taken from role to role, once within the same
workforce, with the same type and level of check.
If an applicant has subscribed to the Update
Service, their potential employer can go online
(with the applicant’s consent), and carry out an
instant, free check to ensure that the information
released on the DBS certificate is current and up to
date. There is no official expiry date for a criminal
record check issued by DBS. Any information
revealed on a DBS certificate will be accurate at
the time the certificate was issued. An employer
should check the date of issue on the certificate to
decide whether to request a newer one.
Employers using the DBS checking service must
comply with the code of practice. This code
is issued under section 122(2) of the Police
Act 1997 [http://bit.ly/1bJ6mwp] and is there
to ensure that employers are aware of their
obligations that the information released will be
used fairly.
Change
A Court of Appeal decision (R (T and Others) v
Chief Constable of Greater Manchester [2013]
EWCA Civ 25) held that the blanket disclosure
of all convictions and cautions currently required
was a disproportionate means of achieving the
legitimate aim of protecting employers and, in
particular, children and vulnerable adults in their
care, thereby unjustifiably interfering with an
individual’s right to respect for private life under
Article 8 of the European Convention of Human
Rights. The case is currently on appeal to the
Supreme Court and is due to be heard on 9 and
10 December.
In the interim, the Exceptions Order 2013
[http://bit.ly/H1Goqo], which came into force
on 29 May 2013, has the effect of no longer
requiring certain ‘protected convictions’ and
‘protected cautions’ to be disclosed in a DBS
certificate and employers can no longer ask
questions about such convictions or cautions or
rely on them to refuse employment or to dismiss
an employee. A ‘protected conviction’ is:

• one which does not relate to a ‘listed offence’,
such as violent and sexual offences
• one which no custodial sentence was imposed
• one where the individual has no other
convictions (where the individual has more
than one conviction, all convictions will be
included on the certificate)
• one which was received by a person aged
under 18 at the time of the conviction and five
and a half years or more have elapsed, and
• one which was received by a person aged 18
or over at the time of the conviction and 11
years or more have elapsed.
A ‘protected caution’ is a caution which:
• does not relate to a listed offence
• was given to a person aged under 18 at the
time of the caution and two years or more
have elapsed, and
• was given to a person aged 18 or over at the
time of the caution and six years or more have
elapsed.
(C) Pre-employment health checks
Section 60(1) of the Equality Act 2010 (‘the
EqA’) [http://bit.ly/19BFCGo] generally prohibits
employers from asking applicants questions
about their health before a job offer is made. It
applies to any job recruitment process involving
internal or external applicants and to selecting
a pool of candidates who may be offered work
in the future. This does not prevent employers
selecting the best candidate for the job; instead,
the aim of section 60 of the EqA is to ensure that
the employment selection process is objectively
made, on merit and ability to do the job. It
prevents disability or health information being
used to filter out applicants before they are given
the opportunity to demonstrate they have the
skills to perform the role.
The prohibition on asking questions about
health applies to all potential employers and
employment agencies. It applies at the point
of entry to the organisation and relates to any
questions, in any form, that are made before
the job offer. Once an offer is made, it can be
conditional on medical checks and health-related
questions can then legitimately be asked.
Under section 60(6) of the EqA [http://bit.
ly/19BFCGo], there are some exceptions to
the general rule, thereby allowing health- and
disability-related questions to be asked pre-offer
in the following limited circumstances:
• to establish whether an applicant can comply
with a requirement to undergo an assessment
or decide whether any reasonable adjustments
need to be made to the assessment process
for the applicant
• to decide whether an applicant can carry out a
function that is intrinsic to the job
• to monitor diversity among applicants
• to take positive action to assist disabled
people, and
• to confirm that a candidate has the disability
where having that disability is an occupational
requirement of the job.
Enforcement
The power to enforce the prohibition on disability
and health questions lies with the Equality and
Human Rights Commission. It has the power to
investigate and serve notices on an employer.
This is most likely to happen where persistent
offenders are brought to its attention.
However, where a question is asked either
deliberately or inadvertently about a candidate’s
ability and an employer rejects a candidate
because of the answer to, or failure to answer,
the question, it is likely to be unlawful disability
discrimination under the EqA. If the unsuccessful
candidate claims direct disability discrimination,
there will be a presumption of discrimination and
the burden of proof will shift to the employer,
who will then have to prove that there was a
non-discriminatory reason for the failure to select
the candidate, provided the candidate has a
disability as defined in the EqA.
This is a general statement of the law as at October
2013. It should not be relied upon without first
seeking separate legal advice.
This Appendix has been written by Joanne Owers and
Matthew Davies, partners in the Employment and
Immigration group at Fox Williams LLP, city lawyers.
The group’s expertise is focused on the human side
of enterprise, encompassing the range of legal issues
in HR and throughout the employment lifecycle. They
can be contacted on 020 7628 2000 or at jowers@
foxwilliams.com and mdavies@foxwilliams.com

Issued: December 2013 Reference: 6426 © Chartered Institute of Personnel and Development 2013
Chartered Institute of Personnel and Development
151 The Broadway London SW19 1JQ UK
Tel: +44 (0)20 8612 6200 Fax: +44 (0)20 8612 6201
Email: cipd@cipd.co.uk Website: cipd.co.uk
Incorporated by Royal Charter Registered charity no.1079797

Pre-employment checks guide

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