This document provides guidance on pre-employment screening processes, including making conditional job offers, checking references, permission to work in the UK, medical reports, qualifications, criminal record checks, and withdrawing offers. It outlines the legal requirements and best practices for properly screening applicants to establish statutory defenses against negligent hiring claims.

1. Pre-Employment Screening
Ben Power and Andy Peters, Solicitors
Springhouse Solicitors

2. We will cover…
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Making an offer subject to conditions
References
Permission to work in the UK
Medical reports and questionnaires
Checking professional qualifications
Disclosure and Barring Services (DBS) checks
Withdrawing offers

3. Offer Letter
• Make offer conditional with the widest
possible discretion
• Include probationary period

4. References
• Liability to the subject of the reference
• Receiving a bad reference
• Data protection issues

5. Permission to work in the UK
• Obligation to prevent illegal working from 29
February 2008 onwards: Immigration, Asylum
and Nationality Act 2006
• Civil penalty for negligent employment (up to
£10,000)
• Criminal offence for knowingly employing
illegal worker
• Unless you can establish the ‘statutory excuse’

6. Establishing the statutory excuse
• A series of specified steps must be carried out
before employment begins
• Full statutory excuse if all checks and
procedures covered
• Partial statutory excuse if a few undertaken –
reduced civil penalty
• Full guidance provided in UKBA’s
Comprehensive Guidance for Employers on
Preventing Illegal Working

7. Documents to check
• Employer needs to request original documents
• List A documents for individuals who are not subject to
immigration control or have no restriction on their length
of stay. E.g:
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British/UK passport
EEA or Swiss passport
EEA or Swiss residence permit or permit residence card
Biometric Immigration Document indicating permission to stay
indefinitely in the UK
– Passport or other travel document indicating indefinite leave to
stay or right of abode
– Full UK birth certificate
– Full UK adoption certificate

8. Documents to check
• List B documents for individuals who are subject to
immigration control and have restriction on length of stay.
E.g:
– Passport or travel document or Biometric Immigration
Document indicating permission to do the work in question
– Work permit in combination with passport or other travel
document indicating right to stay in the UK
– Immigration Status Document or letter issued by Home Office
indicating permission to do work in question in combination
with an official document giving the person’s permanent NI
number

9. Documents to check
• Documents which do not establish a right to
work in the UK. Examples include:
– Immigration Service Letter (IS96W) stating that
the asylum seeker can work in the UK
– Abbreviated birth certificate
– Permanent NI number in isolation
– Driving licence
– Utility or bank bills

10. What to check
• The following should be checked:
– Photographs; dates of birth; expiry dates; detail of
permissions or endorsements; genuineness and
absence of tampering; documentary proof of name
changes
– Identifying false documents: “reasonably apparent”
test
– Copies of original documents must be retained until 2
years after employment has ceased
– Annual checks where B List the documents relied on

11. Medical Reports and Questionnaires
• Examinations for particular reasons
• Examinations to test general health
• Data protection issues: will constitute “Sensitive
Personal Data”
• Access to Medical Reports Act 1998 will need to
be complied with
• Equality Act 2010: other than in limited
circumstances job applicants should not be asked
about their health

12. Checking Professional Qualifications
• Making job offer subject to provision of
original certificates and documents
• Information Commissioner’s Employment
Practices Code: allow the applicant an
opportunity to provide an explanation
• Consider checking no restrictive covenants in
existing contract

13. Disclosure and Barring Service (DBS)
Checks
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Recent reforms
Checking criminal records
Spent and unspent convictions
Dealing with information where there is a
criminal record

14. Recent Reforms
• Criminal Records Bureau (CRB) and
Independent Safeguarding Authority (ISA)
merged to form the Disclosure and Barring
Service (DBS) on 1 December 2012
• Standard and enhanced CRB checks are now
standard and enahanced DBS checks
• Enhanced CRB check with Barred List check is
now an enhanced check for regulated activity
• New on-line update service

15. Checking criminal records
• Two levels of disclosure by the DBS:
– Standard disclosures
– Enhanced disclosure: ordinary enhanced or enhanced
with list checks
• Enhanced certificates will include information
about convictions, cautions, reprimands and
warnings, relevant police information, and where
appropriate information stored on statutory lists

16. When will checks need to be made?
• Regulated activities limited to activities carried
out frequently by the same person or where
the “period condition” is satisfied
• In scope: responsibility for management or
control of regulated activity (meaning that
teaching PGCE courses, nursing courses, those
responsible for pastoral care, day nurseries
etc. are all covered in the higher education
context)

17. Regulated activities
• Five specified regulated activities in relation to children:
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teaching training or instruction
care or supervision
advice or guidance
on-line moderation
transportation
• Regulated activities relating to vulnerable adults include:
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healthcare
relevant personal care
social work
general household matters
conduct of personal affairs
transportation

18. Spent and unspent convictions
• General principle: spent convictions do not
need to be disclosed
• Exceptions: when spent convictions must be
disclosed

19. Withdrawing an employment offer
• Before acceptance by the employee
• After acceptance by the employee