Recruitment – Possible Checks
An employer may choose to undertake certain pre-employment checks:
- Medical checks
- Credit checks
- Membership to a register check (lawyers to Solicitors Regulatory Authority, accountants to Chartered Institute, Financial Services Authority)
- Qualifications check
- Check no outstanding post-termination restrictions apply (from a previous employer).
- It is unlawful to ask a job applicant health related questions and then based on the answers decide whether or not to offer work.
- That said, an employer can ask questions about fitness if these enquiries are intrinsically linked to the applicants’ ability to perform the vacant role.
- Once an offer of employment has been made, employers may decide to ask employees to undertake a medical assessment or complete a questionnaire. Employers cannot treat staff less favourably as a result of any information obtained without exposure to a disability discrimination allegation, but there is no prohibition on taking this action.
- Employers will be obliged to make reasonable adjustments if pre-employment/during employment medicals uncover disabilities.
The legal position is clearly set out in section 60(1) Equality Act 2010 which provides that:-
- "A person (A) to whom an application for work is made must not ask about the health of the applicant (B):
- (a)before offering work to B, or
- (b)where A is not in a position to offer work to B, before including B in a pool of applicants from whom A intends (when in a position to do so) to select a person to whom to offer work.”
This makes it inappropriate for an employer to ask a job applicant any health related questions before offering work to the job applicant. Merely asking questions about the job applicant's health is not unlawful disability discrimination, but anything the employer does in reliance on information given in response to such questions may be.
Pre-employment credit checks are not prohibited by law but should be proportionate to the role applied for. Credit checks are considered by the Information Commissioner to be "vetting" which should only be used where there is no less intrusive and reasonably practicable alternative. It is likely to be appropriate to carry out credit checks for a role that involves the prospective employee handling cash or accounts or working for a financial institution (where a bad credit rating could compromise organisational integrity) but not otherwise.
It should be noted that credit checks can take a variety of forms from:
- CCJ (County court judgments) validation
- Bankruptcy and insolvency check
- Credit history report
- Notices of correction verification
- Membership and Qualification checks
It is quite appropriate for checks to be made to ensure that an employee is eligible to undertake a role. It may be necessary, for example, to check FSA Registration membership details. It may also be appropriate to request sight of original qualification certificates. Job offers should be made subject to proof of necessary qualifications or memberships where appropriate.
Offer letters or employment contracts themselves can contain clauses that require proof that previous employment restrictions are not in force:
“The Employee represents and warrants to the Company that, by entering into this agreement or performing any of his obligations under it, he will not be in breach of any court order or any express or implied terms of any contract or other obligation binding on him and undertakes to indemnify the Company against any claims, costs, damages, liabilities or expenses which the Company may incur as a result if he is in breach of any such obligations.”
Disclaimer: This article does not contain a full statement of the law and it does not constitute legal advice. Please contact the Employment Law Team on 020 3743 0600 if you have any questions about the information set out above.