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Handling the employment relationship life-cycle – practical tips and pitfalls for professional managers

Clare Murray and Charis Damiano

Background checks in the UK: Understanding the Transatlantic difference

Published in www.expertguides.com

While it is routine in the USA to conduct background checks on potential new employees, this is not common practice in the UK, except in certain limited sectors and roles. Often US employers come up against problems if they try to conduct certain checks in the UK in line with their US headquarters’ policy. Employers setting up new businesses in the UK must ensure they understand what is and what is not permissible in relation to employee background checks.

All UK employers need to check that an applicant is legally able to work in the UK. Failure to do so could result in a fine of up to
£10,000 for employing illegal workers. Further, knowingly employing an illegal worker could result in a prison sentence.
Employers should ask all new employees (irrespective of nationality) to bring in their passport (and any relevant visas) on
their first day of work. Employers should photocopy the first page of the passport and any pages containing visas and so on. Copies should be kept for two years after the employee has left.
Criminal backgroundchecks
Although the precise laws vary from state to state, it is routine in the US for employers to require consent for some sort of criminal
background check before hiring new employees. Recently, however, US employers are having to balance their desire to make
background checks with the increasing emphasis states and the EEOC have placed on justifying the rationale for taking adverse
action as a result of any findings.
In the UK, an employer’s ability to conduct criminal background checks on new employees is far more limited. Certain professions require criminal background checks from the Disclosure Barring Service (DBS), formerly the Criminal Records Bureau, and these include:
  • professions such as medics, lawyers, accountants, vets, chemists and opticians;
  • those employed to uphold the law (such as judges and officers of the court, the police, prison officers and traffic wardens); certain regulated occupations (in particular financial services);
  • those who work with children, provide care services to vulnerable adults or who provide health services; and
  • those whose work means they could pose a risk to national security.
In these professions, employers are permitted to apply for criminal record checks on employees using the DBS. The disclosure service provides employers with background information about potential employees who need to uphold the highest standards of professional performance or who work with children or vulnerable individuals. There is provision for three levels of disclosure to be provided by a DBS certificate. Basic disclosure provides details of unspent convictions, standard disclosure includes convictions and cautions (spent and unspent) and police reprimands, and enhanced disclosure will provide any relevant police information in addition to the above.
The key distinction arises in relation to spent and unspent convictions. Subject to certain exceptions, those who have been convicted of a criminal offence but who have not re-offended during a specified period from the date of conviction (the rehabilitation period) are considered to be rehabilitated and their convictions become spent. During the period from the date of the conviction to the end of the specified period, the conviction is deemed unspent (still live). The length of the rehabilitation period depends on the sentence imposed (not the nature of the offence) but it is not insignificant: for a prison sentence of six months or less, for example, it is seven years). Prison sentences of more than two-and-a-half years never become spent. There are proposals, however, to shorten these rehabilitation periods in 2013.

When an applicant falls within one of the regulated professions listed above, employers are entitled to ask about spent convictions when making their decision as to whether to employ the individual. The individual should be informed that they are obliged to disclose spent

convictions. Employers will normally be justified in withdrawing job offers from candidates who fail to disclose spent convictions or dismiss employees who gave false information (although most employers will have conducted separate DBS checks themselves in regulated
professions).
If an employer discovers that the potential employee has a spent conviction through the DBS check, except in certain situations (for example it would be unlawful to hire someone as a teacher who has a background of sexual offences against children), it will be in the employer’s discretion as to whether they will hire them. They will need to weigh up a number of factors, including the nature of the offence, the circumstances surrounding it and whether it goes to the heart of the role applied for.
However, if they ultimately refuse to hire them because of the spent offence, they will not normally face consequences as a result. However, the DBS’ new Code of Practice sets out certain guidelines in relation to the obtaining and handling of this information, including:
  • ensuring that application forms make it clear that a disclosure will be required;
  • ensuring that all applicants are notified of the potential effect of a criminal record history on the recruitment and selection process and any recruitment decision;
  • discussing any matters revealed in the disclosure with the applicant before withdrawing any job offer; and
  • providing a copy of the Code to an applicant on request.
Unregulated professions
But what about the jobs which are not specifically covered by the Disclosure Barring Service? Can employers conduct routine checks on all new hires? Can they too rely on spent convictions? There is no express law prohibiting employers asking for details of a successful candidate’s criminal record; however, the law recognises the need for a balance between rehabilitation and protection of vulnerable individuals. Employers will have to rely on employees volunteering this information honestly (for example in application forms).
Unless the job falls within the DBS list of regulated professions set out above, most spent convictions do not need to be disclosed to an employer (prospective or current), even where there is a direct request for that information or a contractual requirement to disclose it. Therefore an individual with a spent conviction is entitled to hold themselves out as having a clean record for the purposes of such questions. Unspent convictions (if the statutory time since the conviction has occurred has not yet expired) would still need to be disclosed, however.
Use of information
In professions where a DBS check is not mandatory, employers cannot rely on spent convictions, only unspent ones. As a result, an individual cannot be subjected to any liability or otherwise treated unfavourably for failing to disclose a spent conviction (such as not hiring the candidate as a direct result or dismissing them on finding out about the conviction). Case law shows that employees can bring a
claim for unfair dismissal if so treated and they have the requisite amount of service.
For example, in Property Guards Ltd v Taylor and Kershaw [1982] IRLR 175, the employer’s argument that it was justified in dismissing a security officer after finding out about a spent dishonesty offence, was not successful; reliance on the dishonesty aspect could not override the laws relating to spentconvictions.
In relation to failing to hire a candidate following disclosure of a spent conviction, the law is not particularly helpful or clear. A candidate would have to be able to show that they were not offered the job as a result of the spent conviction (and this may be hard to prove). Given that most employers would rely on other reasons not to hire them, this may be difficult to achieve.
When relying on unspent convictions, employers may be entitled to withdraw the offer. Before doing so, however, it may be sensible for the employer to determine whether the conviction goes to the heart of the role being offered (fraud or dishonesty in a cashier role, for example), the circumstances surrounding the offence and whether the individual can offer an explanation.  If a person lied about their criminal record (and was not entitled to conceal it because it was a spent conviction), the employer may wish to terminate the relationship for breach of trust and confidence. If it is shortly after the employment has commenced, the employer is likely to be able to terminate the employee’s contract by giving the correct notice (or payment in lieu). If the employee has sufficient qualifying service to bring an unfair dismissal claim, more care is needed. It may be outside the range of reasonable responses for the employer to dismiss for
breach of trust and confidence where the employee has shown themselves to be trustworthy and
competent in the role, particularly over a long period.
Employers should also consider making it a term of the contract for an employee to have an ongoing duty to disclose criminal convictions. If someone is employed and later acquires a criminal record, this may call into question their suitability for the role.
Careful thought
The law in the UK in the area of background checks is not straightforward and requires a good working knowledge of the various governing statutes. The tricky issue relates to spent and unspent convictions. Clarity in this regard is critical for employers when undertaking background checks. Unlike in the US, it is not common practice to carry out invasive checks unless the individual will be working in a profession where DBS checks are permitted. Employers will have to rely on voluntary disclosure and take care when acting on information received during this process. It would be sensible to consider a wide range of factors when employing individuals, including detailed references and relevant qualifications. Good recruitment processes should go a long way to assist in this regard, as would implementing designated probationary periods with clear goals and regular performance appraisals.
Charis Damiano and Clare Murray specialise in English employment of partnership law at UK firm CM Murray LLP. Charis is based in New