There are various legal issues to bear in mind when requesting or assessing information in support of a job application. (Note that, if it is a company's practice to seek supporting information only after it has offered the applicant the job, it should make the job offer conditional on that information being satisfactory (making the job offer).)
Some jobs may require special security clearance. For example, certain work for the government requires special clearance under the Official Secrets Act. Where this is relevant, employers should seek further advice from their Association.
When deciding what supporting information they need and when they should obtain it, employers should bear in mind the advice in the Data Protection Code. Personal information should be obtained only when necessary for a fair recruitment decision to be made. An employer may not need to obtain some information on an applicant, such as banking details, until it has decided to offer him or her the job.
The Code accepts that employers are justified in making reasonable checks on the information that applicants have given. However, the Code advises that applicants should be told the nature and extent of those checks. If the employer intends to ask a third party for information about the applicant, the applicant should be asked for his or her written consent to this. If checks reveal discrepancies, the applicant should be given an opportunity to explain them.
A company may wish to confirm that candidates are able to comply with the mental and physical requirements of the job. In particular, where the job involves night work, the company will need to check that candidates are fit for this type of work (special hazards ).
For most purposes, it will be adequate for candidates to complete a section in the application form on their medical history or a brief medical questionnaire. However, if the information they provide indicates that they may not be fit for the job, either because of the duties involved or because of the environment in which it is carried out, it may be necessary to follow this up with a GP's report or even a full medical examination.
Fuller information may also be necessary for the purposes of the employer's occupational pension scheme. However, it should be borne in mind that it is likely to be unlawful to reject a disabled candidate simply because he or she is not eligible to join the pension scheme, rather than because he or she is not the best qualified candidate for the job.
If a company uses medical questionnaires or asks for medical reports on candidates, it should ensure that this policy is not confined to disabled candidates. There is usually no reason to assume that a disabled candidate will be any more or less healthy than a non-disabled applicant, and singling all disabled candidates out in this way is therefore likely to amount to unlawful discrimination (disability discrimination). If, however, it appears that a candidate, whether disabled or otherwise, has an impairment that may affect his or her ability to do the job, then it is perfectly lawful to question the applicant further about this. It is also lawful to reject a disabled applicant on the grounds that the applicant's impairment would have a substantial adverse impact on his or her ability to do the job and that no reasonable adjustment (duty to make adjustments ) could be made to overcome that.
If the company decides to obtain a medical report on a candidate from his or her GP, then it must comply with the Access to Medical Reports Act 1988. In summary, the Act requires employers to obtain written consent from job applicants before they ask their GP for a report on them. The applicants have the right to see a copy of the report before it is sent to the employer and can ask for it to be amended. Further information on the Act and detailed advice on obtaining and using medical reports can be found elsewhere in this Guide (obtaining medical evidence ).
The Data Protection Code points out that information on workers’ health is sensitive personal data, and employers are entitled to collect it only where one of the conditions for holding such data is met. These include where the information is necessary for the employer to fulfil a legal obligation, such as the duty not to discriminate on grounds of disability or to protect health and safety, or the job applicant has expressly and freely consented to providing the information. A job applicant should be told why health information is being asked for and how it will be used. Once obtained, the information should be kept secure, and retained only for as long as is necessary. While the Code accepts that a decision as to whether an applicant is suitable for a particular job is a management one, it advises that any health information that the applicant provides should be interpreted by a suitably qualified health professional.
If a medical report on a job applicant has not yet been received at the time when the job offer is made, then the offer can be made conditional on the company receiving a report that it considers to be satisfactory. The job offer should also indicate that, if the successful applicant starts work before the report is received and the report then proves unsatisfactory, the company might decide to terminate the employee's contract. If this happens during the first month of employment, then the company can terminate the contract without notice, unless the contract states otherwise. After one month, the company must give at least one week's notice of termination. The job offer and contract of employment should make this position clear.
Under the Immigration, Asylum and Nationality Act 2006, it is a criminal offence for an employer to recruit anyone who does not have the right to work in the UK. However, the employer has an absolute defence to such a charge if it did not know that the applicant did not have the right to work in the UK.
In order to establish this defence, the employer must be able to show that, before the person’s employment began, it saw and either retained or copied certain documents, specified in the legislation, which indicated that the person did have the right to work here. The employer must also satisfy itself that the documents appear to relate to the individual producing them, in particular by checking that the individual resembles any photograph the documents contain and is of an age that corresponds with the date of birth given in the documents.
Certain documents are sufficient in themselves to show the right to work in the UK. These include a passport showing that the holder is a British citizen, or a national passport or national identity card showing that the holder is a national of a country in the European Economic Area or Switzerland. Alternatively, an individual must produce two specified documents in a specified combination. These include, for example, a document giving the person’s permanent National Insurance Number and name, such as a P45 or P60, together with a full UK birth certificate that includes the names of the holder’s parents. If the individual’s name differs between these documents, he or she must also produce a document, such as a marriage certificate, to explain the difference. (Full details of the documents that are acceptable can be obtained from the Home Office ( recruitment links ) or your Association ( EEF Associations ).)
In order to avoid committing a criminal offence under the Act, a company would be well-advised to ensure that it sees, checks and copies the required documents before offering an applicant a job. Employers also need to bear in mind that these requirements apply to all recruits, regardless of their racial or national origin. Asking only those applicants who have ‘foreign’ sounding names or do not speak with an ‘English’ accent to produce the necessary documentation would be an act of unlawful racial discrimination. The Home Office has produced a Code of Practice on how to avoid racial discrimination while seeking to prevent illegal working ( recruitment links ). The Code advises employers to give all the specified documents equal weight.
Employers must meet an additional requirement if they have recruited a national of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia or Slovenia. As well as checking the individual’s right to work in the usual way, the employer must ensure that the new recruit registers with the Home Office’s Workers Registration Scheme within one month of starting work. However, with regard to Bulgarian and Romanian nationals that wish to work for an employer in the UK, they will require prior permission from the Home Office to do so.
Further information on the Immigration, Asylum and Nationality Act 2006 can be obtained from the Home Office ( Right to work in UK ). Employers can obtain information on work permits for overseas applicants from their Association (EEF Associations) or from the Border and Immigration Agency.
A company may wish to check whether a prospective employee has a criminal record.
In general, it is unlawful to refuse to employ someone because of a criminal conviction that is 'spent' under the terms of the Rehabilitation of Offenders Act 1974. Only certain types of work specified under the legislation, such as jobs involving the administration of justice or contact with children or vulnerable adults, are exempt from this principle.
A conviction becomes spent after a specified period of time that depends upon the sentence given for the offence and the individual's age at the time of conviction. A conviction that led to the individual being sentenced to between six months and 30 months in prison, for example, becomes spent after 10 years if the individual was 18 or over when convicted, whereas a conviction leading to an absolute discharge becomes spent after six months.
Applicants are under no obligation to disclose spent convictions, even in response to a direct question about whether they have a criminal record. If a company obtains information about spent convictions, for example from an applicant's referee, it is unlawful for the company to act on that information, such as by dismissing the person.
Some employers require job applicants to use their subject access rights under the data protection legislation to obtain a copy of their criminal record from the police. The Information Commissioner regards this practice as an abuse of individuals' access rights. It is also unsatisfactory because police computer records may not differentiate between spent and unspent convictions.
Currently only certain registered organisations with the consent of the individual concerned can obtain disclosure of criminal records from the Criminal Records Bureau in exchange for a fee. These disclosure statements of criminal convictions will be either at a standard or enhanced level depending on the job concerned and primarily relate to jobs involving regular contact with children and vulnerable adults. This service is available in Scotland, through Disclosure Scotland ( Criminal records ).
Further information on employing ex-offenders can be obtained from the National Association for the Care and Resettlement of Offenders ( Recruitment links ).
A company may wish to obtain references on candidates, perhaps from present and past employers. References can be used to obtain another view on an applicant's suitability for the post, or to check the accuracy of information that the applicant has given, such as dates of employment and attendance records. In general, employers are under no obligation to give a reference. However, if they choose to give one, they have a legal duty to the subject of the reference (the job applicant) and to the recruiting employer who relies on it, to exercise reasonable care in compiling it. Referees may state that they are providing the reference on the basis that they do not accept any legal responsibility for loss the recipient may be caused by relying upon it.
Individuals may seek access to references that the recruiting company has received, under the subject access provisions of the data protection legislation (subject access rights). The company may be entitled to refuse access if this is necessary to protect the identity of a third party, particularly the author of the reference. This is the case unless that person has consented to the disclosure or it is reasonable in all the circumstances to disclose the information despite the lack of consent. The Data Protection Code (code of practice ) gives guidance on when it would be reasonable to withhold the reference.
If references have not been received at the time when the job offer is made, then the offer can be made conditional on the company receiving references that it considers to be satisfactory. The offer should also indicate that, if the successful applicant starts work before references are received and these then prove to be unsatisfactory, the company might decide to terminate the employee's contract. If this happens during the first month of employment, then the company can terminate the contract without notice, unless the contract states otherwise. After one month, the company must give at least one week's notice of termination. The job offer and contract of employment should make this position clear.