There have been no significant changes or updates on employment law this month, so I have taken the opportunity to provide some guidance on carrying out checks on new recruits. This is something that busy employers often overlook, but it can be very helpful to ensure you avoid taking on someone who is not what they appear to be!
Also, don’t forget that the National Minimum Wage and National Living Wage go up today.
Please contact me if you would like to find out a bit more about any of the subjects raised in this update or if you need any help or advice.
Please forward this email to any of your contacts who might find it of benefit.
As an employer you may well invest a lot of time and money during the recruitment process to ensure you select the best person for employment. Applicants can also spend a lot of time making sure that their application form or CV stands out from the crowd. Unfortunately that can sometimes mean stretching the truth or even on occasions blatantly lying.
It is important that you carry out appropriate checks, preferably before your new recruit starts working for you. Some checks are necessary in law, but most of them are for your own benefit to ensure that you really do have the best candidate. This article sets out in brief the sorts of pre-employment checks you should consider.
Right to work in the UK
As we reported last month, there is new guidance from the Home Office on checking candidates’ eligibility to work in the UK. Whilst there is no legal requirement to carry out such checks, you would have no defence if you were found to have employed somebody illegally. So it makes sense to carry out checks for any new starters. You should not make assumptions about a candidate’s nationality; if you only check those who appear to be foreign nationals, you could find yourself facing a race discrimination claim.
Qualifications and licences
If you require your new recruit to have attained a particular qualification or to hold a licence of some sort, you should ensure that you seek confirmation from them that they hold them. You should ask them to show you the original document so that you can satisfy yourself it is authentic, and it is advisable to take a copy for their file.
If you have any doubt about the authenticity of any certificate, you should make further checks with the issuing body. In some cases you will need the candidate’s written permission to obtain such confirmation. If they are not willing to give you permission it is likely that they have something to hide!
Whilst references can sometimes appear pretty meaningless, particularly where the old employer is not prepared to provide anything more than confirmation of dates of employment, it is still worth following them up. It is surprising the number of candidates who will lie about dates of employment in order to hide gaps. Some have even been known to lie completely about previous employment in the hope and expectation that references will not be followed up.
It is sometimes worth seeking more information from previous employers, beyond merely establishing dates of employment, particularly if their previous experience is relevant to the new job. You should make any reference request as concise and direct as possible, as providing a reference for a past employee can be seen as quite a chore for some employers, and if you keep it simple they are more likely to do it. Use of email, rather than post, can also elicit better results.
Health checks may only be carried out prior to appointment in limited circumstances, such as:
where you need to find out whether the candidate is able to carry out something that is intrinsic to the job. For instance, a warehouse job may involve lifting and stacking heavy containers, so you may wish to establish that candidates are capable of lifting them
for the purposes of establishing whether any reasonable adjustments may be required to facilitate a candidate attending an interview or undertaking an assessment
Carrying out health checks in other circumstances could leave you open to claims of disability discrimination.
Criminal records checks
You may ask any applicant to disclose to you if they have any unspent convictions. If they declare an unspent conviction, you may take that into account in deciding whether or not to appoint them. In most cases, however, you are not permitted to take into account any spent convictions.
The Rehabilitation of Offenders Act sets out the categories of spent and unspent convictions. In simple terms, each offence has a particular time period during which it is considered unspent. At the end of the particular time period it is considered spent. More serious penalties, such as imprisonment for a term in excess of 30 months, have no rehabilitation period and, therefore, will always be unspent for these purposes.
Some employers are able to carry out Disclosure and Barring Service (DBS) checks on prospective employees (and may, indeed, be obliged to carry out such checks). This may apply if the job involves working regularly with children or vulnerable adults. DBS checks will include any spent as well as unspent convictions.
If an offer of employment is made subject to any of the above checks, it is important that the candidate is notified at the time the offer is made. It is advisable, therefore, to state this fact clearly in the offer letter.
National Minimum and Living Wage Rates
The current National Living Wage and National Minimum Wage rates increased with effect from 1st April 2019 as follows:
From £7.83 to £8.21 per hour for workers aged 25 and over
From £7.38 to £7.70 per hour for workers aged 21 to 24
From £5.90 to £6.15 per hour for workers aged 18 to 20
From £4.20 to £4.35 per hour for workers aged 16 and 17
From £3.70 to £3.90 per hour for apprentices under 19 and those over 19 in their first year*
*N.B. Apprentices over 19 and who have completed at least one year are entitled to the appropriate rate for their age.