What Is The Law Surrounding Employer Checks?
More and more employers are requesting background checks on potential employees and job applicants.
With this in mind, it’s more important than ever that both employers and employees understand the legalities of background checks, especially criminal record checks, known in the UK as DBS checks.
Transparency is important
One of the most important things for employers to remember is to be completely open and transparent about any checks that you are carrying out. Don’t try to keep it a secret from the employee as this could be considered a violation of their rights and is illegal.
Establish proof of identity and residence
Employers need to get proof of identity and residence for DBS checks. Equally, employees have a legal responsibility to provide accurate details and documents. Documents may include passports, driving license, and other government-issued IDs.
Levels of DBS check
One area of confusion for employers and employees alike is which level of DBS check should be requested according to the job role.
In general, basic DBS checks are only applicable to lower responsibility jobs such as shop assistants, cashiers, etc. to check for basic trustworthiness.
Standard DBS checks are used mainly for professional jobs with higher levels of financial or corporate responsibility such as lawyers or accountants.
Enhanced DBS checks are used for regulated activities, which are those that are safeguarding-critical and involve working directly with children or vulnerable adults, such as teachers, doctors, child-minders, etc.
Basic checks can be applied for by the individual, whereas standard and enhanced checks need to be verified and submitted by the employer or registered agency.
Health or medical checks
Certain medical checks may be required for job roles, for instance bus drivers or airline pilots may need to take or provide the results of eyesight tests. Jobs in the military or emergency services may require people to undertake health checks to make sure that they are up to the physical demands of the job.
Employers need to ask for the individual’s consent to perform health checks or medical record searches. Many employers ask for health checks to fulfil insurance requirements.
Also, it is worth bearing in mind that it is illegal for employers to discriminate against people with disabilities or health conditions if it is not critical to the role. For instance, an employer cannot turn down an applicant based solely on their history of asthma if the role is a desk job.
The employer is entitled to request references from previous employers or education providers. The potential employee is not legally obliged to provide details, but the employer is legally allowed to turn down applications that don’t provide reference details.
Employers are within their rights to check for proof of qualifications. If employees cannot provide them, the employer can ask to contact the school or institution where they were issued.
Employers are allowed to collect information on race, gender, and ethnicity when recruiting new staff. Collecting this data allows employees to monitor their equal opportunities policy and recruitment targets. Employees are not legally obliged to provide this information though, and can lawfully withhold details on their gender, race, sexual orientation, family status, and religion.
Data protection rules
Under UK GDPR rules, employers should only collect data and information that is relevant to the application or check being undertaken. Data must be collected transparently and employers must make any information gathered on the individual available to them if they request it.
If an employee requests details of the data, the employer is allowed to request a fee of up to and including £10 and they must provide the employee with full access and details within 40 days.
Find out more about DBS checks
If you need more information on DBS checks, including advice on the legalities, please get in touch today and one of our expert team would be more than happy to talk to you.