Vicky Stanton looks at the checks you must carry out once you have gone through your recruitment process and identified your next employee…
The Immigration, Asylum and Nationality Act 2006 outlines the checks that all employers must undertake to ensure workers have the right to work in the UK. An employer is acting unlawfully if they employ a person who does not have this right, and can be fined up to £10,000 per illegal immigrant worker.
You must check the relevant document before the person starts working for you. Make sure that you see the original document and take a copy for your records. You need to keep a record of every document you have copied, securely, for the duration of the person’s employment and for the subsequent two years after they finish working for you.
Do not make assumptions about whether you think the person has the right to work in the UK. Treat all job applicants in the same way at each stage of the recruitment process and you ensure that you don’t run any risk of allegations of discrimination.
The law requires employers to check documents from a defined list (known as list A and B) to ensure compliance. People will either have documents that show they are not subject to immigration control or have any restrictions on their stay in the UK, or they will have documents that grant them permission to enter or remain in the country for a defined period and/or have restrictions on their ability to work in the UK.
More details and the full list of documents in List A and B can be found in the ‘Guidance for Employers on preventing illegal workers’ at ukba.homeoffice.gov.uk
It is likely that the majority of your staff will come under the eligibility criteria for a check under the DBS eligibility guidance.
The documents that the individual has to produce to verify their identity can be the same as the documents they provide under The Immigration, Asylum and Nationality Act 2006, so it makes sense to do the two processes at the same time. In fairness, the DBS checks do require more information.
Have a process ready to deal with any disclosures that come back with an unfavourable entry and ensure your policies have a clause within them detailing how you will deal with any new disclosures at the time that a member of current staff is re-vetted.
You can ask a prospective member of staff who has lived overseas to obtain a criminal records check or a ‘certificate of good character’ from their country of origin.
Another matter to be aware of is that you must have a policy on employing ex-offenders if you carry out criminal records checks. You must show the policy to any applicant who asks for it.
References are seen as an important part of pre-employment screening; however, due to case law, previous employers are more cautious in providing references. References should provide a fair and accurate picture of the individual, and any information given should be based on fact.
Some previous employers will be very minimalistic with their reference response and merely confirm that the individual worked for them, dates of employment, job title, salary and reason for leaving. References should not give any opinion about the applicants’ suitability for the job, as it is not a response based on fact but an opinion. Treat personal references from family friends with less importance than employer or educational references as, to be honest, whose friend will give them a poor reference?
The Equality Act 2010 made it unlawful, except in certain circumstances, for employers to ask about a candidate’s health.
The Equality Act 2010 limits the circumstances when employers can ask pre-employment health-related questions before offering the position. The circumstances are:
● to help an employer decide if reasonable adjustments are needed in the selection process;
● to determine if an applicant can carry out a function that is essential to the job such as heavy lifting; or
● for diversity monitoring purposes.
Once a candidate has been offered a job, then the employer can ask appropriate health-related questions.
Vicky Stanton is director of HR 4 Your Nursery, a professional HR consultancy working specifically with nursery and preschool owners and managers to take the challenge out of people management.
