News & Views

Recruitment – how well do you really know who you are employing?


Jasmine Sudworth, employment solicitor at Sherrards examines how employers can tighten up their recruitment process in order to ensure that they end up with the right employee for the job.

It is safe to say that the process of recruiting new employees can be both a time-consuming and costly process and so it is imperative that, at the very least, you end up with the right employee for the job.

One way of ensuring that you are able to achieve this (on top of robust recruitment procedures) is by conducting additional background checks and searches on any potential employees.

References

Unfortunately, it has become common practice for employers to only provide standard references in respect of their past employees, i.e. only confirming an employee’s position and specific employment dates.

Effectively, this means that references from previous employers no longer provide any real insight into the candidate – other than to confirm employment history – and raises the important question of how can you, as an employer, seek any reassurance in relation to who you are actually employing.

Background checks

Some occupations allow a registered employer to conduct a DBS check in respect of a future employee. This check will reveal a candidate’s criminal record, including any convictions, cautions, warnings and reprimands (if any).

Employers have also taken to analysing a prospective employee’s Facebook and/or LinkedIn profile. It has now become a well-known cautionary tale for candidates who have attended an interview and been asked to explain a photo from their time at School or University, which perhaps they may well have preferred to have forgotten!

It is worth remembering that you can also learn a lot from a basic Google search.  If somebody has been in the news for something (good or bad), this might be worth knowing!

Tribunal judgment search (to be used with caution!)

Another useful tool is the Employment Tribunal website (https://www.gov.uk/employment-tribunal-decisions). Since February 2017, this has provided an online record of all public Tribunal judgments. It is a useful search to conduct in order to establish any potential vexatious candidates who have a history of raising complaints against their employer and who could simply be looking for a payoff.

Whilst the Employment Tribunal website is a useful tool, it should be used with caution, especially if you are going to allow it to impact upon your decision about whether to offer someone a job. It is important to remember that the candidate in question could have had a legitimate complaint against their former employer and the claim could be justified.

If you did allow this to influence your decision, this could give rise to a claim against you for victimisation. This is where a person subjects another person to a detriment because that person has done a “protected act”. A protected act includes bringing proceedings under the Equality Act 2010 (i.e. a claim for discrimination). Accordingly, if you do not offer someone a job because they have previously brought Tribunal proceedings for discrimination, then ultimately you would be subjecting them to a detriment as a result of them doing a protected act.

Liability of recruiters and agencies

It is worth noting that the Conduct of Employment Agencies and Employment Business Regulations 2003 (as amended), place certain obligations on recruiters in respect of prospective candidates. As a minimum, recruiters are required to obtain confirmation of the agency worker’s identity and to confirm that the agency worker has the experience, training, qualifications and authorisations necessary for the work required.

Where the agency worker is looking to work with vulnerable people and/or is required to have professional qualifications or authorisations, this obligation is enhanced. In these instances, recruiters have to obtain copies of the qualifications, obtain two references (which must be from individuals who are not related to the agency worker), and take all reasonable steps to confirm that the agency worker is suitable for the position concerned.

Failure to comply with these Regulations may result in an unlimited fine (depending on the level of conviction). Whilst this is not a claim that can be brought directly against an agency by an employer, the fact that you, as an employer, could report an agency for failure to comply with these regulations will hopefully be sufficient motivation for the agency to comply with their obligations.

To wrap up

Obviously, it is difficult for an employer to be 100% sure about anyone at the point of recruitment. However, we hope that the above has highlighted some simple and easy steps that you can use to give you at least some reassurance.

If you have any questions in relation to this article, recruitment or Employment law generally, please do not hesitate to contact a member of the Employment team at Sherrards Solicitors, who will be happy to assist you.

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