Pre-employment checks for employers

Pre-employment checks are an important part of the recruitment process. They help you to ensure the potential employee:

• is who they say they are (identity checks)
• has permission to work - and remain - in the UK
• has no unspent convictions which would impact the suitability for the role (eg Disclosure Scotland checks for a solicitor or accountant)
• has no unspent or spent convictions that could impact suitability for those doing regulated work with children and protected adults (Protecting Vulnerable Groups scheme)
• has not been barred from carrying out the job - e.g. for roles holding the position of director
• is suitably qualified or skilled for the job (references and qualifications)
• is physically able to carry out the job

You must ensure your checks are not discriminatory (for example, a health check that discriminates against disabled people and is not necessary for the job) and do not discourage people from applying for the job.

You can make any job offer conditional on the outcome of pre-employment checks.

A conditional job offer does not become a binding employment contract until both parties have agreed to it and can be withdrawn if the conditions are not met.

You should carry out your checks as quickly as possible once a conditional offer has been made.

The first check is to confirm the identity of the candidate. You should not undertake any other checks until you are satisfied that the candidate is who they claim to be.

You can check a person's identity by requesting original copies of documents - such as passports, birth certificates and driving licences. You can also ask for copies of documents that confirm that the person lives where they claim they do - e.g. by providing a recent bank statement or utility bill with their name and address on.

The government has guidance on how to prove and verify someone’s identity through various steps:

• get evidence of the claimed identity
• check the evidence is genuine or valid
• check the claimed identity has existed over time
• check if the claimed identity is at high risk of identity fraud
• check that the identity belongs to the person who is claiming it.

Non-UK nationals (other than Irish citizens) who want to work in Scotland, either need indefinite leave to remain in the UK, have settled or pre-settled status under the EU Settlement Scheme or a UK visa.

All employers in the UK have a responsibility to stop illegal migrants working. You must therefore check the entitlement of everyone you plan to employ to work in the UK. Failure to do so may result in a civil penalty.

The government has a guide to the checks employers need to make on the right to work. They also have a useful tool to check if a document allows someone to work in the UK.

Even if you think that a potential employee has the right to work in the UK, you should still make the necessary checks.

Since April 2022, the government has updated the Right to Work guidance and implemented a “Digital Right to Work Scheme” which means that employers can use a certified Identity Digital Service Provider (IDSP) to verify the Right to Work status of a potential employee.

Under certain circumstances, employers can apply for a sponsor licence to employ someone (including for volunteer work) from outside the UK.

Disclosure Scotland

For certain positions it will be appropriate to carry out criminal record checks. Criminal records checks should not be requested until a job offer is made, but you should make it clear, in writing, that the job offer is conditional upon a check and the level of disclosure that is required. In Scotland, these checks are done through Disclosure Scotland.

There are four levels of disclosure.

• Basic: A criminal record check that shows any unspent criminal convictions. Employees can apply for this themselves.
• Standard: A higher level of check relevant for accountants, actuaries, people who administer the law, e.g. solicitors, those who use firearms. It will cover unspent convictions, relevant spent convictions, unspent cautions and information from the Sex Offenders Register.
• Enhanced: This is relevant for those requiring a gaming or lottery licence. As well as the information in a Standard disclosure, it will cover if the individual is listed as being barred from working with children and/or vulnerable adults. It is a criminal offence for listed people to do regulated work with those groups, or for an employer to appoint them to regulated work.
• Protecting Vulnerable Groups (PVG) scheme: The PVG scheme is managed by Disclosure Scotland and helps ensure people who are unsuitable to work with children and protected adults are prevented from doing regulated work with these vulnerable groups. Rather than relying on a certificate which is a “snapshot” in time, Disclosure Scotland keeps checking the individual’s suitability to continue work with children or protected adults and if new information comes to light, meaning an individual is not suitable to work with children or protected adults, they will bar the individual from regulated work, remove them from the PVG scheme and tell any employers listed on the account that the individual has been barred.

Businesses can register with Disclosure Scotland if they’re applying for standard, enhanced or PVG disclosures for employees. This enables employers to countersign disclosure applications and check employees' disclosures.

Alternatively, employers can use an umbrella body who can countersign applications on their behalf.

Avoiding discrimination

Once you have received the relevant Disclosure Scotland certificate, you can assess whether the candidate is suitable for the job if previous convictions are revealed. Generally, under the terms of the Rehabilitation of Offenders Act (1974), someone convicted of a criminal offence who does not receive any further convictions during 'the rehabilitation period' becomes a rehabilitated person. Their conviction is regarded as spent - therefore after a certain period of time, you should treat the person as if the conviction had not happened.

People should not be unfairly discriminated against due to past convictions. You should also give the candidate a chance to explain if a check reveals adverse information about them.

Whether the conviction is spent or unspent, you should carefully weigh a number of factors, including:

• how long ago the offence was committed
• the candidate's age at the time
• the relevance of the offence to the job offered
• the penalty awarded
• whether the offence was isolated or part of a pattern of offending
• what is known about the person's behaviour before and since

The situation is different if the job offered falls into an exempted category according to the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003, including those with regular contact with children and vulnerable adults who may be listed as being barred from this work.

If in doubt, take professional advice.

Forthcoming changes to the disclosure system in Scotland

The new Disclosure (Scotland) Act 2020 focuses on safeguarding children and vulnerable adults, while balancing the need for people with convictions to move on from past convictions and contribute to society. The changes do not come into effect immediately as there is a period of implementation and production of training and guidance which is taking some years to complete, so look out for updates.

It's important to check the applicant's qualifications when the qualification is 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 original certificates. You can verify them by contacting the awarding body direct e.g. The Scottish Qualifications Authority (SQA) can provide you with details of the qualifications it accredits. Information is also available about the competence and performance levels they are based on.

Alternatively, you can use one of the checking services – just Google “pre-employment background checks for employers” to find service providers.

The UK National Information Centre for the recognition and evaluation of international qualifications and skills (UK ENIC) can help potential employees compare overseas qualifications with UK equivalents.

Although not compulsory, it is advisable to check a potential employee's references.

You can do this in writing or by telephone during the recruitment process. Some candidates will prefer you not to check their references until they have been offered the job as they may not want their current employer to be aware they are looking for another role. Therefore, you must have their permission before any referees are contacted.

Except for certain employers in regulated industries such as the financial services sector, employers aren't obliged to give references.

What can be included in references

The easiest way to obtain references is in writing. You could ask:

• when and for how long the candidate was employed
• what their job title and main duties were
• how many days of sick leave they took
• whether they were subject to disciplinary action or sacked - and if so - why
• whether they were reliable, honest and hardworking
• if there are any reasons why they should not be employed

However, some previous employers have a policy to only provide basic details such as job title, salary and the dates the individual was employed. This is to protect them from accusations of providing unfair or inaccurate information and challenges that they were discriminatory if using different approaches for some people and not others. So receiving only brief details is not necessarily a negative reflection of the employee’s performance.

Sometimes extra detail can be revealed by telephoning the referee. It is advisable to write to the referee first so they expect your call and have time to prepare.

If you have any doubts about whether a reference is genuine, you should actively check the referee's identity e.g. by calling them.

Are references confidential?

Generally, employees do not have the right to ask their former employer to see a job reference that the employer has written about them. However, they can request their new employer for data they hold about them, which would include references they have received.

Individuals may also be able to access notes made about them during a telephone reference as well as any notes you make during and after their interview.

The government has a guide for small businesses about the questions that employers can ask potential employees and successful candidates about health and disability.

Questions about disability and health during the recruitment process

Before offering a job 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 to an employment tribunal if you have potentially carried out a discriminatory act.

When to carry out pre-employment health checks

You should only complete pre-employment health checks:

• once you have offered the job to a particular person
• where testing is needed to meet any legal requirement - e.g. eye tests for commercial vehicle drivers
• where any candidate - disabled or not - would be required to undergo testing to decide if they are fit to carry out the job, for example as required by insurers
• when you are sure you need this information and have policies in place to securely hold the information as required by the Data Protection Act 2018

Health checks - if required - should be carried out on all candidates to avoid unfairly discriminating against disabled candidates. The level of assessment will depend on the nature of the job and can range from simply checking the levels of absence in a previous job to a full health assessment.

If you are making a job offer conditional upon the candidate's fitness for the work, this should be stated clearly in the offer letter.

The candidate must give you written consent before you request a medical report. Candidates have the right to see the report and can request that it is amended or withheld from you. You may be required to pay a fee for a medical report on a candidate.

No contract of employment exists until a candidate has accepted an offer and all conditions under which the offer was made have been satisfied. You can withdraw conditional job offers made subject to suitable references and criminal records checks, where the results are not as you expected.

If a candidate starts work before the results of checks have been received, you should make it clear that the offer may be withdrawn if the checks prove unsatisfactory. You may also wish to offer employment subject to a trial or probationary period. The length of the period may depend on the type of job and how much time is needed to demonstrate the necessary skills.

If you decide to withdraw the offer at the end of the period, you need to give the employee the notice period specified in their written statement. It's also highly advisable to explain clearly why the offer is being withdrawn to avoid potential legal claims, e.g. for discrimination. If no notice period has been agreed, they are entitled to the statutory minimum notice period, or to any longer period which is the established custom or practice within the industry.

An alternative to withdrawing an offer is to extend the probationary period - if the contract allows - and to provide appropriate training.

Employees cannot claim unfair dismissal before completing two years' service (if employed on or after 6 April 2012), unless it is for a number of automatically unfair reasons. However, an employee dismissed during - or at - the completion of their probationary period may be able to claim breach of contract if - for example - you have not provided training that you promised would be given.

The Data Protection Act 2018 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.

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

The use of sensitive information such as race, ethnic background and health - including information that might be disclosed during a criminal records check - is more tightly controlled and employers need to take extra care.

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 - e.g. 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.

The government has a useful summary of what personal data an employer can keep about an employee with or without permission, what an employer should tell an employee and how to manage staff records.