PRE-EMPLOYMENT SCREENING
Christine Jenner
Partner, DAC Beachcroft LLP
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What form should screening take?
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Identity checks
Right to work checks
Criminal records checks (DBS checks)
Health checks
Reference checks
Qualification checks
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What are the key legal issues?
 Data Protection Act 1998 and the Employment
Practices Code
 Rehabilitation of Offenders 1974 and the DBS Code of
Practice
 The Equality Act 2010
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Criminal records and barring
 Under ROA - normally no requirement to disclose spent convictions
but reasonable to ask for details of unspent convictions
 The exceptions order identifies types of role that are exempt from
ROA protection even where the conviction is spent:
 professions
 those employed to uphold the law
 certain regulated occupations
 those concerned with care services to vulnerable adult, health
services or who work with children
 national security risk
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Criminal records and barring
How do you obtain information on criminal records?
 Option 1: Ask for voluntary disclosure
 Option 2: Official DBS checks
Note: On 1 December 2012 CRB and ISA merged to
become the Disclosure and Barring Service and a
CRB check is now a DBS check
How should you respond to disclosure of a criminal
record?
 Factors to consider
 Refusing to employ soemone if they have a criminal
record
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Criminal records and barring
The Employment Practices Code:
 Only obtain information about criminal records if the
information can be justified in terms of the role offered
 Check that it is clear spent convictions do not have to
be declared (unless the job is one covered by the
exceptions order).
 Limit the collection of information to offences that have
a direct bearing on suitability for the job in question.
 Only request criminal history information for an
individual being recruited not all applicants
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Pre-employment health screening
 Employer must not ask job applicant questions about
health:
 before making an offer (conditional or not)
 before including applicant in a pool/or on a short list
 Sanctions:
 EHRC can take action to enforce breach
 unsuccessful job applicant claiming disability
discrimination
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Pre-employment health screening
 Exceptions to rule include:
 questions to establish reasonable adjustments to
assessment (recruitment) process
 questions to establish if applicant can carry out a
function intrinsic to work concerned
 questions posed as part of diversity monitoring
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Pre-employment health screening
 In practice:
 Do ask applicants for details of disabilities in order to
make reasonable adjustments to recruitment
process
 Don’t ask other questions about applicant’s health in
writing/during the interviews up to the offer stage
 Consider whether to make offer of employment
conditional on satisfactory health check
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