1.0 Recruitment, making pre-employment checks and contracts of employment

1.1 Complying with the Rehabilitation of Offenders Act 1974

You should only request information about an applicant’s criminal convictions if you can justify that the job demands it. If you can justify asking for this information, make it clear that spent convictions do not have to be declared, unless the job being filled is covered by the Exceptions Order to the Rehabilitation of Offenders Act 1974.

1.2 Checking references

It is advisable to check a potential employee’s references. You can do this in writing or by telephone at any point during the recruitment process. Some candidates will prefer you not to check their references until they have been offered the job, and you must have their permission before any referees are contacted. Except for certain employers in the financial services sector, previous employers aren’t obliged to give references.

1.3 Checking qualifications

You should check the applicant’s qualifications if they are essential to the position you want to fill. In some professions, applicants must be in possession of specific qualifications before they can practice. You can check qualifications by asking to see the candidate’s certificates. Alternatively, you can check with the awarding bodies or use one of the checking services – such as Experian.

1.4 Carrying out health checks

You may wish to include health checks as part of your recruitment process. A health questionnaire may ask about individual and family history and lifestyle. They can highlight potential problems requiring a follow up – eg by a medical examination.

However, you must ensure you are not carrying out discriminatory practices in asking potential employees to pass a health check.

Before offering an interview to anyone, you should only ask about a candidate’s disability or health if you need to find out whether:

  • they will be able to attend an interview or do some form of selection test
  • you will need to make a reasonable adjustment to enable them to attend an interview or do the test
  • they will be able to do something that is intrinsic for the job in question

You can also ask about a candidate’s health if:

  • you want to monitor the diversity of your applicants
  • you want to take positive action to enable you to recruit more disabled workers
  • the job in question is one for which having a disability is an occupational requirement

Asking a question about disability is not in itself discriminatory. However, your conduct following the candidate’s response could lead an employment tribunal to conclude that you have carried out a discriminatory act. You also need to comply with the Data Protection Act 1998 when collecting and storing these details.

1.5 Pre-employment checks – data protection issues

The Data Protection Act 1998 applies to personal information – data about living, identified or identifiable individuals, including information such as names and addresses, bank details, and opinions expressed about an individual.

There are eight data protection principles. Information should be:

  • processed fairly and lawfully
  • processed for one or more specified and lawful purposes, and not further processed in any way that is incompatible with these purposes
  • adequate, relevant and not excessive
  • accurate and – where necessary – up to date
  • kept for no longer than is necessary for the purpose for which it is being used
  • processed in line with the rights of individuals
  • kept secure with appropriate technical and organisational measures taken to protect the information
  • not transferred outside the European Economic Area (the European Union member states plus Norway, Iceland and Liechtenstein), unless there is adequate protection for the personal information being transferred.

The use of sensitive information – including information that might be disclosed during a criminal records check – is more tightly controlled. For further information, see a list of the conditions for processing sensitive personal data on the ICO website.
http://www.ico.gov.uk/for_organisations/data_protection/the_guide/conditions_for_processing.aspx

There are some guidelines you should keep in mind in relation to pre-employment checks. You should:

  • only carry out checks which are necessary
  • think carefully about the best point in the process to carry out the different checks
  • where possible, only check the successful applicant
  • let applicants know what checks will be made and how they will be carried out
  • make sure that checks are carried out for a specific purpose
  • only use sources which will reveal relevant information
  • only rely on information that comes from sources you trust
  • give the candidate the chance to explain if a check reveals adverse information about them
  • if a third party is to be involved in the process – eg a previous employer not listed as a referee – let the applicant know
  • Any information you gather in the process of making your pre-employment checks must be kept securely and confidentially. The candidate has the right to ask to see any information you hold on them which you must supply within 40 days of receiving the request. You can charge a fee of up to £10 for providing the information.

1.5 Providing a written statement

To comply with the law, you must give each employee a written statement of employment particulars within two months of their starting work for you. The terms of a contract of employment may be oral, written, implied or a mixture of all three.

An oral contract is as binding as a written one, though its terms may be more difficult to prove. If you want to include provisions specific to the individual, you can state these either orally or in writing. However, stating them in writing may prevent disagreements in future.

If you issue a written contract, you should include a term stating that it replaces all previous discussions/correspondence in relation to terms of employment provided the employee accepts this.

If you do not have any kind of contract of employment with an employee, you must – at the very least – issue them with a written statement.

If you have some kind of contract of employment with an employee, you do not need to issue a written statement as well – but only as long as the contract contains all the items required in a written statement.

    The training TBG Learning offers ties in very well with our own pre-employment programme and they support their customers extremely well. We’re keen to work with the local community and the local workforce, to ensure the hotel is a valuable asset to the area.

    So far we’ve employed three new staff through TBG Learning and they’ve been fantastic additions to our team.

    Carly Whitcombe, Jurys Inn, Human Resources Manager

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