Employee References | How to Check Refernces - hr-legal.co.uk HR-Legal Top





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Employee References

Employee References

 

Although not compulsory, 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, employers aren't obliged to give 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 - and if so - why

  • whether they were reliable, honest and hardworking

  • if there are any reasons why they should not be employed

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 ring back to check the referee's identity.

 

Are References Confidential?

 

Generally, employees do not have the right to ask their employer to see a job reference that the employer has written about them. However, they may be able to gain access to it from the person the reference is sent to, so you should not assume a reference will stay confidential.

 

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.

 

Checking Qualifications

 

As well as looking at references, you should also check the applicant's qualifications, especially 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 certificates. Alternatively, you can check with the awarding bodies or use one of the checking services - such as Experian.

 

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.

 

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 an employment tribunal to conclude that you have 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 any candidate - disabled or not - would be required to undergo testing to decide if they are fit to carry out the job

  • where testing is needed to meet any legal requirement - eg eye tests for commercial vehicle drivers

  • 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 1998, regardless of whether it is in paper or electronic form

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.

 

You must ensure you are not carrying out discriminatory practices in asking potential employees to pass a health check. Health checks - if required - should be carried out on all candidates to avoid unfairly discriminating against disabled candidates. For further guidance, see our guide on how to prevent discrimination and value diversity.

 

You may be required to pay a fee for a medical report on a candidate. The candidate must give you their 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. Even without the applicant seeing the report, the doctor must keep it for 21 days before sending it to the employer.

 

Applying for a Criminal Records Check

 

Certain positions will enable the employer to apply for a criminal records check for the potential applicant from the Criminal Records Bureau (CRB). This is usually required when people are working regularly with children or vulnerable adults. The Security Industry Authority also carries out a criminal record check on anyone who applies for a security licence.

 

It is important to ensure that a position is eligible for a CRB check before starting the process. Eligibility is governed by the Rehabilitation of Offenders Act (1974) (Exceptions) Order 1975. You should contact the CRB if you are unsure whether a position is eligible for a check.

 

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 criminal records check.

 

There are two types of criminal records check - standard and enhanced. The type of check you will need to make will depend on the work that is to be undertaken.

 

A standard check lists any:

  • spent or unspent convictions

  • cautions

  • warnings

  • reprimands held at national level

The enhanced check must be used for all applicants where the work involves regular contact with vulnerable groups - such as children, disabled people and elderly people. An enhanced certificate has all the same information as a standard certificate as well as any other relevant information from local police forces. For more information see our guide: criminal records checks.

 

You must be registered with the CRB or use the services of an 'umbrella body' if you want to obtain CRB checks. A registration fee of 300 is payable.

 

Avoiding Discrimination

 

Once you have received your copy of the CRB certificate, you can assess whether the candidate is suitable for the job. A CRB check will reveal previous convictions. 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.

 

In most cases where a position is not eligible for a CRB check you cannot:

  • insist on being told about a criminal offence that is spent

  • take into account offences which are spent

However, a conviction resulting in a prison sentence of more than 30 months can never be spent.

A person must disclose all convictions - including spent ones - if the job offered falls into an exempted category according to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, including:

  • regular contact with children and vulnerable adults

  • accountancy

  • work as a barrister

  • police work

  • posts relating to the administration of justice or financial regulation

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

  • 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.

Ensuring Candidates are Eligible to Work in the UK

 

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 or criminal conviction.

 

Some people can work in the UK without restriction, including:

  • citizens of the UK, Channel Islands, the Isle of Man and Ireland

  • Commonwealth citizens with the right to live in the UK

  • most European Economic Area (EEA) and Swiss nationals, although nationals of some Eastern European EEA countries will need authorisation or to register with the UK Border Agency (UKBA) to work in the UK

  • family members of nationals from EEA countries and Switzerland that are residing lawfully in the UK

  • dependants of migrants who have entered the UK under one of the tiers of the points-based system

Even if you think that a potential employee has the right to work in the UK, you should still make the necessary checks. You should ask candidates to provide evidence of their right to work in the UK by producing original copies of documents specified by the UKBA.

 

 

 
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