In order to recruit the best staff for the job, an employer will anticipate a certain skill set and attributes they wish in prospective employees. Beyond the point of hiring, an employer will often wish to establish a probationary period to ensure a new recruit is meeting expectations.
An employer can never unlawfully discriminate in their recruitment processes. Depending on the type of business the employer operates, disclosures as to criminal background can be requested by an employer. Further, there are data protection and retention issues even where a candidate is unsuccessful for a role.
Under the Data Protection Act 1998, employers who process individual’s personal data must adhere to the principles prescribed in the Act, which require that the processing of the data is for a lawful purpose and is relevant to that purpose, and that the information is accurate and is held for no longer than necessary.
In the course of the recruitment process, a candidate must be notified of any use the employer will make of the personal information they share, and clearly indicate for how long that information will be retained.
Under the Equality Act 2010, an employer cannot explicitly or implicitly discriminate against anyone on the basis of a protected characteristic. This includes where an employer might indicate they cannot accommodate persons with disabilities.
Unless an exception applies, an employer cannot refuse a candidate due to a criminal conviction of up to four years if that conviction is spent. Being “spent” in England & Wales refers to a statutorily prescribed rehabilitation period after completion of a sentence. With custodial sentences this period can be up to seven years.
Many jobs will however require a criminal record check. In the UK there are three levels of record request: (1) a Criminal Conviction Certificate (CCC); (2) a Criminal Record Certificate (CRC); and (3) an Enhanced Criminal Record Certificate (ECRC). A CCC will not disclose spent convictions.
Employment sectors where exemptions apply and criminal records disclosures are required include medical and legal professions, accountancy, education, social services and positions that involve working with children.
Many employers will purport to have a probationary period at the outset of employment, during which time initial performance is reviewed. A probationary period cannot interfere with a new employee’s statutory rights, including that against unfair dismissal. From the day an employee commences work, the employer must adhere to any disciplinary policy they operate and provide proper notice to a new employee if they wish to dismiss them.
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It is important to find the balance between vetting candidates to find those best suited to the job and respecting the statutory rights of candidates and new employers, otherwise an employer can leave themselves vulnerable to legal claims.
At Lewis Nedas, our Employment Law Solicitors have over 40 years ’ experience advising and representing national and international companies. Our Employment Lawyers have joined the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues, including recruitment processes.