For other citizens, such as British and Irish citizens, the three-step manual alternative system set out below can still be used. Although it’s not mandatory for employers and landlords to use a certified IDSP for the purposes of right-to-work checks, the Home Office recommends employers use a certified IDSP.  

Since 6 April 2022, employers can no longer accept physical cards for the purposes of right-to-work checks for certain citizens, such as those who have Biometric Residence Cards, Biometric Residence Permits and Frontier Worker Permits. They must instead use the Home Office online service above. 

Three-step checking process  

Step one 

Obtain original right-to-work documents from the prospective employee.  

Step two 

Check the document is genuine, relates to the prospective employee and does not prohibit the particular employment.  

For each document, you should check:  

• photographs are consistent  

• dates of birth are the same  

• names are consistent or evidence of a name change is provided  

• qualification or professional certificates are current and consistent with other documents  

• they are genuine and have not been tampered with  

• they relate to the person providing them.  

Step three 

Copy the document in a format that cannot be altered and keep a secure, dated copy.  

The whole of the document needs copying as evidence that right-to-work checks have been carried out, unless the document is a passport or travel document. Where a passport or travel document is provided, a copy should be taken of:  

• the front page  

• any page containing personal details of the holder, including the photograph and date of birth, and  

• any pages containing right-to-work endorsements from the UK Government.  

The copy should be in a format that cannot be altered or amended at a later date, for example a scan or photocopy. It’s also recommended that the date on which the copy is made is written on the copy. All copies need storing securely on the employee’s file, in line with data protection obligations, for the length of their employment and for a further two years after their employment ends.

Acceptable documents for right to work checks are set out in the Home Office guidance, including the Codes of Practice referred to above.  

The documents are separated into:  

• List A documents are for those with a permanent right to work in the UK and include documents such as a passport showing the holder is a British or Irish citizen or an EEA national with fully settled status, or a full birth certificate plus an official document providing the individual’s National Insurance number. List A documents give a permanent ongoing statutory excuse for the length of the individual’s employment, provided they are checked correctly. Employers are not required to carry out follow-up checks on these documents.  

• List B documents are available to individuals who have a temporary or time-limited right to work in the UK and so employers must complete follow-up checks. The documents are separated into two different groups:  

• Group 1 documents are time limited and the statutory excuse will apply until the individual’s permission to work in the UK expires. Before expiry, organisations are required to carry out a follow-up check to determine whether the individual has a continued right to work in the UK from the date the original document expires.  

• Group 2 documents require organisations to carry out and receive a positive verification notice from the Home Office in advance of employment. This creates a statutory excuse for six months, with a follow-up check required at the end of this period.  

Organisations will be required to apply to the Home Office for a positive verification notice where an individual cannot produce acceptable right-to-work documents and they have:  

• An outstanding application that was submitted to the Home Office before any previous right to work expired 

• A pending appeal against a Home Office decision  

• A pending administrative review against a Home Office decision. 

Case law example  

In Baker v Abellio London Ltd, the Employment Appeal Tribunal agreed that a dismissal for a failure to provide right-to-work documents, where the individual had the indefinite right to live in the UK, did not fall within the statutory illegality ground because the employee was not subject to immigration control under the 2006 Act. The EAT also highlighted that there is no legal requirement to obtain documentary evidence of right to work; the law merely provides organisations with an excuse from the civil penalty if these documents are collected. The EAT determined, however, that this could be a ‘some other substantial reason’ dismissal if the organisation genuinely and reasonably believed that they would be acting illegally if they continued to employ the individual without receiving the documents.

Once the checking process is complete and the organisation is satisfied that the documents are authentic, genuine and relate to the particular individual, the statutory excuse against civil liability will arise. This excuse remains applicable even if, at a later date, it is proved that the documents were false, except if it is ‘reasonably apparent’ that the documents do not relate to the particular individual. In situations involving Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 2006), although the new business partially obtains the previous organisation’s statutory excuse against future civil liability, they are advised to carry out right-to-work checks on their transferred employees within 60 days of the transfer, to gain the statutory excuse. Organisations are advised to make offers of employment conditional on provision of satisfactory evidence of the right to work in the UK, and in the particular employment. The fact the offer is conditional on this should be made clear to the prospective employee. 

The UK’s departure from the EU, and the government’s subsequent significant changes to the immigration system, has impacted recruitment from overseas. Since 1 July 2021, all new EU, EEA and Swiss employees have had to show they hold valid pre-settled status, settled status or a valid visa to prove their right to work. It’s not necessary to carry out retrospective right to work checks on pre-existing employees unless an employee’s right to work was time-limited (i.e. has a visa end date) and follow up checks were required.  

For EU citizens from April 2022 onwards List A and B, group 1 documents are amended to remove biometric immigration documents and frontier worker permits. 

Key points for EU, EEA and Swiss nationals moving to the UK on or after 1 January 2021 

Any such national arriving in the UK from 1 January 2021 onwards needs a work visa. Any of these nationals not already in the UK by 31 December 2020 will now need to be sponsored, just like any other non-EEA national.  

To live and work in the UK after the deadline, citizens must satisfy the points-based system that now applies to both EEA and non-EEA nationals coming to the UK. Employers can sponsor EEA or nonEEA nationals to fill skilled roles.  

An EU, EEA and Swiss national will now have either:  

• Settled or pre-settled status under the EU Settlement Scheme.  

• Pending status under the EU Settlement Scheme with application made before 30 June 2021.  

• Leave to enter under a visit, work, or study visa for those who arrived in the UK on or after 1 January 2021.  

• No lawful status as they did not apply to the EU Settlement Scheme by 30 June 2021 and did not have a successful late application. 

Two visa schemes apply to support Ukrainian nationals, and their family members, to come to the UK, work, rent a home, and access public services, such as medical treatment and education. Both schemes do not include salary or language requirements and applications are free. Successful applicants can stay in the UK for up to three years.  

The two schemes are:  

• The Ukraine Family Scheme - for immediate and extended family members of British Nationals and people settled in the UK. Applicants must be applying to join or accompany their UK-based family member; must be Ukrainian or the immediate family member of a Ukrainian national who is applying to the Scheme; and must have been residing in Ukraine on or immediately before 1 January 2022.  

• The Homes for Ukraine Scheme enabling Ukrainian nationals to be sponsored by UK residents, where those residents have suitable accommodation to have at least six months’ leave to be in the UK.  

There are special Border Force permissions providing a border stamp or a visa in a passport granting permission to stay under the Ukrainian Schemes and a time-limited right to work. Employers should manually check this document which will give them a time-limited statutory excuse.  

The acceptable documents for a manual check should fall into the List B, Group 1 documents in the government guidance. Ukrainian nationals who do not have a valid Ukrainian passport must provide their biometric information at a Visa Application Centre to get entry clearance then collect a permit to then access the Home Office online checking service to prove a right to work.  

There are systems for Ukrainians to obtain their biometric residence permits here, and the Home Office online checking service can then be used to prove their right to work in the UK. Employers will need to carry out a follow-up check on Ukrainians with time-limited permission to work in the UK which should be at the end of their 3 years’ leave. Any Ukrainian nationals who have not applied for permission to stay in the UK do not have a right to work and should only be employed once their UK their status has been sorted out. 

The Home Office guidance dated 6 April 2022 explains the visa scheme to support Ukrainian nationals in more depth. 

Any organisation hiring EEA or non-EEA nationals who do not already hold a visa in another category (such as the EU Settlement Scheme or as the dependant of a migrant worker) will need a sponsor licence under either the Skilled Worker or Intra-Company scheme visa route.  

Before applying for a sponsor licence employers need to ensure they comply with your sponsor licence duties and may be inspected (for example a restaurant) before the Home Office grants a licence. Sponsored skilled workers must have a job offer from an approved sponsor and have attained the requisite seventy points based on language, skill and salary level. See below for a summary of sponsor licence fees. 

The introduction of the skilled worker visa in December 2020 reduced the minimum salary and skill level required for employer sponsorship.  

Employers don’t need to advertise a role in the UK before offering it to an overseas worker, but must retain evidence to explain how the migrant worker was recruited, for example via a previous employee or speculative application.  

Employers must offer at least the normal level of pay set at £25,600 based on a 39 hour working week, or £20,480 if the worker is classed as a new entrant. New entrants must be under 26 or have graduated from a UK university within two years of applying for the skilled worker visa. A New entrant’s salary should increase to at least the normal level after four years. 

Organisations risk falling foul of race discrimination laws if they treat individuals differently based on their race, or perceived race, when carrying out right to work checks.  

Individuals must be treated fairly and consistently during recruitment, with the same document requirements and checking process applied to all. Employers must avoid making assumptions about an individual’s right to work without evidence. See the UK government issued Codes of Practice referred to at the start of this section for more advice on avoiding discrimination. 

The Exceptions Order displaces the general rule and states that, in certain roles, organisations can require individuals to disclose convictions that have become spent.  

These roles fall within five main categories:  

• professional roles, for example solicitors and accountants  

• officers or employees in roles requiring the upholding of the law, for example judges and prison officers  

• specified regulated occupations, for example financial services and taxi drivers  

• roles requiring working with children, caring for vulnerable adults or providing health services  

• roles in which the individual could pose a risk to national security.  

Before commencing employment in a role specified in the Exceptions Order, candidates can be asked to disclose any spent convictions, as well as any which are unspent. This is classed as an excepted question and the individual must be informed that they are under an obligation to answer this question. A failure to answer the question, without a valid reason, or to provide truthful information can be treated by the organisation as a reason to withhold an offer of employment or to dismiss.  

For these professions, organisations will also be required to carry out a pre-employment criminal record check, as explained below. Whilst a spent conviction will be disclosed by this check, asking the candidate the excepted question within their application or at interview means this information is received much earlier in the recruitment process, and before the offer stage is reached. The organisation will then be in a position to carry out an earlier review of the candidate’s suitability and they are also able to assess whether accurate information was provided when the certificate is later received. 

Organisations can ask all candidates to voluntarily disclose their criminal record information by including a question on this issue within application forms or as part of an interview. Purely relying on voluntary disclosure, however, is unlikely to result in the organisation being provided with all the necessary information because candidates may fail to disclose all relevant details, or provide false details. Voluntary disclosure will also not be sufficient where the organisation is required to request a standard or enhanced certificate.  

Section 184 of the Data Protection Act 2018 prohibits organisations from requiring individuals to disclose their criminal record through a subject access request as a condition of their employment offer, that is, from making an enforced subject access request. An organisation will commit a criminal offence if they require job applicants to make this access request and can be subject to a fine. Rather than adopting this process during recruitment, organisations can make use of the criminal record disclosure schemes available to them.  

To receive a certificate detailing an individual’s criminal record, organisations can carry out checks through the DBS, Disclosure Scotland or AccessNI, depending on the location of the organisation. There are three types of disclosure certificates that can be applied for, and the type of information to be disclosed is regulated by the Police Act 1997 and the Police Act 1997 (Criminal Records) Regulations 2002. Those organisations that have previously relied on voluntary disclosure can ask an applicant to apply for a basic certificate to receive accurate details of any unspent convictions or cautions, with greater disclosure available for particular roles through standard and enhanced criminal record checks. Fees are charged per check, unless the application is submitted by a volunteer, who will only have to pay an administration charge.  

Under the Data Protection Act 2018, organisations can process criminal record data for the legitimate purpose of performing employment law obligations or rights. Before this processing takes place, an organisation is required to have a policy in place that explains how their processing of criminal record data will be carried out in line with data protection legislation, specifically outlining the internal policies on retention and erasure of data. A privacy notice for job applicants can also be provided to individuals during the recruitment process to communicate the organisation’s compliance systems when carrying out these checks, and explain how data will be used.

Three levels of criminal record certificates  

Basic certificate 

Costing £25, this certificate will contain details of unspent criminal convictions and cautions, or a statement that the individual has no such convictions or cautions on their record.  

These certificates are available to all applicants, regardless of which role they are applying for. To receive a basic certificate, an individual can apply using the online application service through DBS or Disclosure Scotland, so long as they are aged over 16 at the time of the application. Employers can also engage a Responsible Organisation who is registered with the DBS to apply online for a basic criminal check on behalf of the employer. A list of Responsible Organisations is provided on the Government’s website and is updated regularly. 

Standard certificate 

This will contain details of all spent and unspent criminal convictions, cautions, police reprimands and warnings. This check is available for employment in certain specific professions, occupations and licences listed in the Exceptions Order and currently costs £26.  

Enhanced certificate 

This contains all the details included in a standard certificate plus any information held by the police which is reasonably believed to be relevant, taking into account the purpose for which the certificate is obtained. This check is available for those carrying out activities or work in regulated activity with children or vulnerable adults, and for licences and judicial appointments listed in the Police Act 1997.  

For certain job roles listed in the Police Act, including those carrying out a regulated activity, an enhanced certificate with list check can be applied for. For this certificate, the DBS will carry out a check of the statutory barring lists and disclose information on whether the individual is barred from working with children and/or vulnerable adults. An enhanced certificate currently costs £44. 

In a similar process, Disclosure Scotland offers the Protecting Vulnerable Groups (PVG) scheme, which can be joined by those undertaking ‘regulated work’ with children or protected adults. There are three types of PVG disclosure records available that will all reveal whether the individual is named on a barred list or is under consideration for listing, that is, information has been received that means they may not be suitable for that type of work and an assessment is being undertaken to decide whether to list them. 

To receive a standard or enhanced criminal record check certificate, an individual aged over 16 must apply to the DBS or Disclosure Scotland. This application has to be countersigned or electronically submitted by an individual within a registered body, confirming that the position is eligible for the requested criminal record check.  

Registered bodies are organisations that carry out more than 99 DBS checks annually and are eligible to ask exempted questions, for example, the role is one where the individual can be asked to reveal their whole criminal record history, including spent convictions. Those organisations can register with the DBS to countersign applications, paying the registration fee of £300. Once registered, the organisation is required to comply with the Code of Practice published by the DBS.  

Alternatively, for organisations who carry out fewer DBS checks or have not registered with the DBS, they can use an umbrella body. The umbrella body is a registered body that countersigns applications on behalf of non-registered organisations. A list of organisations that are umbrella bodies is maintained on the Home Office website.  

Since 2013, once the DBS or Disclosure Scotland have processed the application, a criminal record certificate will be issued to the individual applicant. The applicant can then review the certificate and has an opportunity to challenge any information disclosed by the certificate. Once the individual is satisfied with the disclosure, they should then provide this to the recruiting organisation. 

Case law example  

In R (on the application of AR) v Chief Constable of Greater Manchester Police and another, an applicant for an enhanced criminal record check objected to the inclusion of a previous acquittal for rape. The chief officer of police reasonably believed the acquittal to be relevant, especially considering that the purpose for which the certificate was sought was to enter teaching roles. The applicant applied for judicial review, arguing there was a breach of his Article 8 right to privacy under the European Convention of Human Rights. The Supreme Court judged his right to privacy was not breached because the disclosure was proportionate, based on the potential employment, and there had been a balancing act carried out between the need for the disclosure and the effect on the individual’s future employment prospects.  

Within their judgment, the Supreme Court raised concerns regarding the lack of guidance in this area, especially for potential employers. As a result of this lack of clarity, this is an area that may be subject to future legal challenges, further guidance or updates. 

In their continued search for a replacement accountant, IHR Construction have carried out a further interview with Brian Harris. Brian meets the essential criteria of the role and appears to be a good fit for the company, therefore HR make him a conditional offer of employment subject to receiving a satisfactory DBS certificate.  

After completing his DBS application, Brian sends his standard certificate to the HR department. The certificate reveals that Brian received a police caution for assault occasioning actual bodily harm five years ago. HR must decide whether this certificate is satisfactory, in line with the company’s internal policy on recruiting ex-offenders. HR consider that the caution is not particularly relevant to the accountant role as it does not relate to dishonesty or fraud, it occurred several years ago and Brian has not re-offended since.  

HR are concerned with the seriousness of the caution, however, because they understand violence must have occurred. They wish to know whether there is an explanation, so Brian is invited to a meeting to discuss the certificate. At the meeting, Brian reveals that he was cautioned following an altercation at a social event during his accountancy studies. However, he has not been in any trouble since because he is focusing on his career and has stayed away from a troublesome group of friends.  

After considering all of the circumstances, HR decide that Brian remains suitable for the role and deem the certificate satisfactory. The condition of employment has been met and arrangements are put in place for Brian’s induction. 

Although an organisation’s policy on recruiting ex-offenders will usually set out practical aspects, such as carrying out criminal record checks and reviewing certificates, organisations may wish to go further than this and review whether their business practices support the employment of those with criminal convictions.  

Good practice in this area includes:  

• avoiding automatic exclusions of those with criminal records from recruitment  

• providing training on software and skills, including soft skills, that may have lapsed over time  

• only sharing details of the criminal record with those who need to know and in line with data protection obligation; making sure the individual knows the extent of confidentiality in this matter  

• providing a positive ‘buddy’ system to integrate the individual back into working life  

• reviewing the working environment to assess the risks, and determining whether any additional support is necessary.  

DBS certificates only contain correct information as at the date of issue. For example, if a conviction is imposed one week after the DBS certificate is issued, this will not be disclosed to the organisation. As a result, organisations are advised to avoid the risk of relying on an out-of-date certificate by requesting candidates to provide a new one at the recruitment stage. 

In sectors where up-to-date DBS certificates will be requested by each recruiting organisation, an applicant can avoid having to apply for a new certificate each time they move roles by subscribing to the DBS Update Service, and paying the yearly fee, which is currently £13.  

Once subscribed, the online service allows the recruiting organisation to carry out a free online check on the prospective employee, with their consent, to determine whether there is any updated information to take into account since their previous DBS certificate was issued.  

The Update Service avoids the risk that organisations are relying on information contained in a previous DBS check by allowing criminal record and barring information in relation to that individual to be frequently updated. The DBS has produced a code of practice for registered bodies and recipients of information disclosed by the Update Service on how information should be handled once disclosed.  

Individuals who are members of the PVG scheme available through Disclosure Scotland will also receive a scheme certificate that contains accurate information up to the date this is issued. While membership of the scheme continues, Disclosure Scotland will continually check the member’s suitability to carry out regulated work.  

Should the service be provided with information that leads to a consideration for listing, they will inform the organisation currently employing the individual. Any subsequent decision to bar the individual will also be informed to the organisation, and any others listed on their record.  

• Spent convictions do not have to be disclosed, unless an exception applies.  

• Criminal record checks may be required before employment can commence in particular roles and sectors.  

• There are three levels of criminal record checks, with standard and enhanced certificates providing information on spent and unspent convictions.  

• Once a criminal record certificate is received, the recipient organisation will have to review any information disclosed to determine whether the prospective employee remains suitable for the particular role.  

• The DBS Update Service can be used where the candidate subscribes to the service and provides consent for the recruiting organisation to carry out an up-to-date online criminal record check.  

• A criminal record check will not disclose information on protected convictions or cautions; therefore, organisations should examine all information and evidence available to determine the suitability of the candidate.  

• Organisations should have an internal policy on the recruitment of ex-offenders, which can be made available to applicants during the recruitment process.

A job-seeker cannot make a claim to an employment tribunal on the sole basis that they have been asked a health- or disability-related question in prohibited circumstances. There is no stand-alone claim or remedial award available.  

Individuals can, however, bring a claim for unlawful disability discrimination where they were not offered a job and this failure can be linked to the organisation asking a prohibited health question, or the applicant’s answer to such a question.  

In these circumstances, the organisation will be placed under the reverse burden of proof to prove that the decision was reached on non-discriminatory grounds. This may be through, for example, evidencing that the health question was asked to ascertain whether reasonable adjustments were necessary, proving that the answer to this question was not disclosed to those making the selection decision, and demonstrating that the reason for the application being unsuccessful was because the candidate did not meet the role requirements, such as having insufficient experience.  

Where a tribunal finds the reason for not offering the role was discriminatory, either because the individual was disabled or they were perceived to be disabled, the organisation will face a costly compensation award.  

The Equality and Human Rights Commission is also responsible for ensuring organisations comply with section 60 of the EqA. The Commission have enforcement powers to investigate and serve compliance notices against organisations, where they believe it is proportionate to do so. This will usually be where organisations are reported for persistent non-compliance. 

Finn Murray is completing an application form for a role as a roofer with IHR Construction Ltd.  

The form contains the following two questions:  

• How many absences has the applicant had in the past 12 months that were related to ill health?  

• Does the applicant have any health conditions that affect their ability to climb up and down ladders?  

Finn has a physical health condition that causes him severe back pain and has resulted in a number of health-related absences from work. As a result, Finn doesn’t answer any of these questions and leaves them blank. Finn is later informed that his application was unsuccessful and he believes this is discriminatory. 

The organisation is prohibited from asking the first question because it relates to health and has been asked before an offer of employment has been made, but does not fall within one of the excepted circumstances. If HR decided not to progress Finn’s application because of his failure to answer this question, they could face a disability discrimination claim.  

The business is entitled to ask the second question because the requirement to climb up and down a ladder is likely to be an intrinsic part of the roofer role. This question, therefore, falls within one of the exceptions and can be asked before an offer of employment is made. 

• Organisations are generally prohibited from asking health questions before making offers of employment.  

• The prohibition covers all health questions, whether asked verbally, in writing, or to third parties such as previous employers.  

• There are exceptions available within the legislation allowing health-related questions to be asked before offering employment, including to establish whether candidates require reasonable adjustments during assessment processes.  

• Organisations can face claims for disability discrimination if they ask health questions where there is no applicable exception; they may be required to prove any subsequent recruitment decisions were based on non-discriminatory factors.  

• The Equality and Human Rights Commission have the power to investigate and serve notices on non-compliant organisations.

Organisations are, generally, under no legal obligation to obtain an employment reference for a prospective employee. It is, however, common practice for organisations to request at least one reference from the individual’s current or most recent employer, with many asking for at least two referees to be provided on application forms.  

If the prospective employee cannot provide two employment references, it is good practice to accept an educational reference or a character reference to avoid placing the individual at a disadvantage. It is good practice for organisations to request, and obtain, references after an offer of employment has been made to the individual rather than before.  

Job offers can be made conditional on receipt of a satisfactory reference, allowing organisations to withdraw the employment offer if the references are not deemed satisfactory. 

Step one: request details of referees from the prospective employee, usually through an application form.

Step two: once a conditional offer of employment is made, send a reference request to the referee.  

Step three: on receipt of the reference, consider whether this contains information that reflects on the prospective employee’s suitability for the role. 

There’s no automatic right to receive a reference from a previous or current employer, except for roles in organisations covered by the Financial Conduct Authority and the Prudential Regulation Authority.  

The House of Lords has stated that employers have ‘at least a moral obligation’ to provide references. Care should be taken to refuse providing references where: 

• there is an express or implied contractual right to receive a reference  

• a refusal could lead to adverse inferences being drawn about the employee concerned  

• a refusal could be seen as discriminatory, for example, as an act of victimisation after a complaint of discrimination has been raised.  

When providing an employment reference, the organisation is under a duty of care to provide one that is true, accurate and fair, and must not give a misleading impression, including by omission.  

Case law has also established the following:  

• References must give all, not part, of the history of the person: it is unfair to give partial facts if those result in the offer being withdrawn, for example where this causes the recipient organisation to assume the information is missing because it is negative, so the offer is withdrawn.  

• References must not conceal facts from the organisation offering employment since they could sue for misleading information if this causes some detriment.  

• References should give facts, not opinions, such as start and end dates, job title, salary and sickness absence (excluding any absence relating to disability or parental leave).  

References may also provide additional factual information covering areas such as the employee’s performance, integrity, relevant personal information and reasons for leaving. Factual evidence must always be available to support any such statements in a reference. A template reference, available on HR-inform, has been included within Appendix 1 to demonstrate one method for organisations providing a reference to a prospective employer.  

To avoid breaching the duty of care and the risk of providing misleading information, many organisations have adopted a policy whereby they provide a brief reference that merely states the former employee’s job title, start and end dates of employment, and duties of the role.  

Where this is the form of reference adopted, organisations should make it clear in the reference that it is their policy to only provide this information. This will ensure the limited reference does not raise any concerns with the prospective employer. 

In some cases, the requesting organisation may send a letter outlining the information they wish to receive to assess the suitability of the candidate, or provide a list of questions to be answered. It will be for the organisation providing the reference to determine whether they can provide all the requested information and, if so, to ensure this remains true, accurate, fair and not misleading. 

The organisation who receives the reference has to determine whether this is satisfactory. Although this is a subjective determination, organisations are advised to remain focused on whether the reference confirms the prospective employee is suitable for the particular employment role, or if it renders them unsuitable, taking into account all other information collated during the recruitment process. 

The recruiting organisation may wish to follow up on the information disclosed by having an informal conversation with the author of the reference, or the previous employer. Asking the previous employer specific questions can disclose additional information. However, caution should be taken in these circumstances as to how any additional information is interpreted. In most cases, the conversation will take place between two strangers and prejudicial information could be provided.  

After an informal conversation, good practice suggests: 

• Any information provided should not be used as a substitute for the prospective employer making their own judgement about employment.  

• The information should be weighed against all evidence received during the recruitment process, making a balanced decision that takes into account all available information.  

• Consideration as to the context and circumstances of the information provided, especially where this is historical, should be carried out as circumstances can change. It is usually appropriate to involve the individual themselves in this consideration. 

Where the reference is not satisfactory, the organisation can withdraw a job offer that has been made conditional on the receipt of a satisfactory reference. If an unconditional employment offer was made and accepted by the applicant, a withdrawal of the offer will breach the existing contract of employment and the organisation will have to provide the employee with notice of termination of their employment.

Under current data protection legislation, organisations should ask prospective employees for their specific consent to obtain employment references from their prospective employees. It is best practice to use a specific consent form for the prospective employee to sign and date, which also informs them of their right to withdraw their consent at any time.  

The Data Protection Act 2018 provides that confidential employment references are exempt from the right for individuals (data subjects) to access personal data processed by organisations through a subject access request. This covers requests for access made to the organisation that provided the reference, and the organisation that received the reference.  

Even though there is no requirement to disclose, organisations may still choose to provide the employment reference to the requesting individual and can ask the other party for their consent to do so. A disclosure can take place without consent where third party information is not revealed, for example the identity of the author of the reference is redacted, or where it is reasonable to disclose the reference without their consent. As such, there is no method of ensuring the individual concerned cannot view the information contained in the reference and, should a claim be brought in the employment tribunal where this document is relevant, the reference will be caught under the duty of disclosure during litigation.  

Therefore, it is important that organisations are aware of what information should, and shouldn’t, be included in the reference as the exemption within the legislation will not prevent all disclosures.

• There is no obligation on organisations to request a reference or to receive an employment reference, except for certain financial roles.  

• Organisations that write employment references are under a duty to ensure these are true, accurate, fair and do not give a misleading impression, including by omission of information.  

• Any contractual policy to provide a basic reference should be disclosed to the recruiting organisation within the reference to prevent adverse inferences being drawn.  

• References should be requested once an offer of employment has been made to the candidate, with this offer being made conditional on the receipt of a satisfactory reference.  

• The recruiting organisation should assess whether the information contained in an employment reference means the candidate is not suitable for the role.  

• Any information contained in a reference that causes the recruiting organisation to withdraw the employment offer should be disclosed to the candidate.

There has been a marked increase in the proportion of organisations making use of social media to research candidates’ backgrounds.  

Numerous surveys have scrutinised the inclusion of social media checks in organisations’ recruitment processes, and a review by YouGov suggests that nearly one in five organisations have decided not to employ a candidate because of the content contained on social media profiles, with large organisations more likely to make this decision.  

Using a search engine or social media in this way is not necessarily unlawful. However, it’s important to balance the organisation’s interests with those of individual applicants, and organisations should be cautious about the way in which they approach such searches.  

Organisations should approach online checks with caution, taking into account the following:  

• information contained online may not always be accurate, up to date or provide context  

• care needs to be taken to confirm that the information sourced online relates to the particular individual, especially where the individual has a common name or there are numerous online references  

• organisations are advised to allow candidates to respond to any information they have found online, in the same way as they provide the opportunity to respond to any other information sourced during the recruitment process  

• candidates need to be informed, at an early stage, that online searches may be conducted by the organisation. A privacy notice for job applicants can be used to inform the individual of the purpose of processing this data and the legal basis for this processing  

• online searches should not be a ‘fishing expedition’; instead, searches need to be aimed at assessing whether the candidate is suitable for the job or not  

• the laws relating to discrimination apply equally to checks carried out online.  

To meet the increased administrative tasks caused by the additional members of staff, IHR Construction Ltd is looking for a new office assistant. After interviewing two candidates, HR have decided Sarah Houghton is more suitable for the role. Before making an offer to Sarah, the HR team carry out an online search as part of their pre-employment checks; the candidates were informed this could take place at the interview stage. During this search, HR access a public social media profile that has photographs and comments revealing that Sarah has previously undergone gender reassignment.  

As a result of finding this information, HR decide they won’t offer Sarah employment because they believe she may feel uncomfortable in the work environment. This is an act of direct discrimination because the decision has been made based on the candidate’s protected characteristic of gender reassignment, which has been disclosed through the online search. 

Use of social media is developing rapidly and it is currently difficult to lay down hard-and-fast rules for organisations. People who upload material to open-access social media platforms may reasonably anticipate that this source may be searched by potential employers.  

Carrying out vetting of candidates using their social media will need to be conducted in compliance with data protection legislation. For example, there should be a legal basis for checking social media profiles and any data collected must be proportionate, necessary and relevant to the performance of the particular job role. For example, organisations in the not-for-profit sector may wish to review the social media profile of leadership candidates to ensure the content on these profiles does not create a reputational risk for the organisation should the candidate be employed in a public-facing role. LinkedIn is a social media platform mainly used for professional purposes, while other forms of social media, including for example Facebook and Twitter, may have mixed public and private use.  

All individuals have an overarching right to privacy under the European Convention of Human Rights that will cover the content posted on privately used social media sites. However, this right is not unlimited and can be subject to necessary restrictions. Organisations will need to consider whether they have struck the right balance between their legitimate business interest, that is, making an informed recruitment decision, and the candidate’s ‘right to privacy’ if they carry out a search on a private social media profile, rather than those profiles that are solely for professional use.  

Organisations who use social media to review a candidate’s suitability for the role need to avoid using this as a fishing or trawling exercise, that is, they need to avoid simply looking for anything on social media which means the candidate is unsuitable. Instead, before this search takes place, organisations can determine what aspects they need to confirm using social media in order to make their selection decision. This will differ depending on the particular organisation and the role they are hiring for.  

Some key areas which organisations may use social media for include:  

• confirming the individual’s online job resume follows their application form  

• matching qualifications to the individual’s education history  

• determining whether there is a reputational risk of hiring the candidate for high-profile roles.  

Where information is sourced through social media which raises concerns about the candidate’s suitability, it is good practice to discuss this with the candidate. The candidate may provide context that has not been considered by the organisation, for example, an online job resume may not match an application form because a previous employer had a social media policy prohibiting staff from linking their personal accounts to the business.  

A full consideration of this information, alongside any context, further details and information sourced elsewhere during the recruitment process, will help organisations make an informed recruitment decision. 

• Care should be taken to ensure any information accessed online is accurate and up to date.
• The same legal protections, including data protection and anti-discrimination, apply equally to online searches as they do to offline recruitment checks. 
• Organisations should limit online and social media checks to information made accessible online for professional purposes, not for personal use. 
• Online data should be accessed to source specific data that is necessary to assess the candidate’s suitability for the particular job role, not as a fishing or trawling exercise.  
• Candidates should be informed that online searches may be carried out, in advance of any search, and they should be provided with the opportunity to respond to any information sourced online. 

Organisations may have heard of ‘blacklisting’ candidates and believe that this relates to a list of individuals who are deemed to be unsuitable for the organisation. ‘Blacklisting’ has a statutory basis, however, and it is prohibited. 

What is a blacklist?  

The BEIS defines ‘blacklisting’ as the ‘systematic compilation of information on individual trade unionists [used by] employers and recruiters to discriminate against those individuals because of their trade union membership or because of their involvement in trade union activity’.  

Under the Employment Relations Act 1999 (Blacklists) Regulations 2010, it is prohibited to:  

• compile, supply, sell or use a blacklist  

• refuse employment to an applicant, dismiss an employee or subject an employee to a detriment for a reason related to a blacklist  

• refuse to provide employment agency services to an individual for a reason related to a blacklist.  

The blacklisting regulations will be breached if the motive for the list is to discriminate based on trade union membership or activities. If an individual is refused employment and they can show that their name was contained on a blacklist, the tribunal will conclude there has been a breach of the regulations unless the organisation can show there was another reason for refusing employment.   

IHR Construction Ltd have had bad experiences in the past with staff who were members of a trade union, and they have defended a number of employment tribunals that were brought by union-represented ex-employees.  

At the selection stage of the process to recruit four new groundworkers, there is a pool of five candidates who they have determined are suitable for the role based on their previous experience and skills. Before deciding who will be successful, the HR team wish to find out whether any of the candidates are members of a trade union.  

HR have previously been made aware that there is a list available within the construction sector naming construction workers who are members of recognised trade unions. HR approach another local construction organisation and ask for this list to be sent to them. The list, once received, shows that two of the pool of five candidates are members of a trade union. As a result, IHR make offers of employment to the remaining three candidates and inform the two union members that they have been unsuccessful.  

The list of construction workers will be classed as a ‘blacklist’ as the intention behind the list is to discriminate against individuals based on their trade union membership. If the candidates who were not offered a job can show their names were on the blacklist, they are likely to make a successful claim at tribunal unless IHR can evidence another reason why they were unsuccessful. 

Blacklisting has been a particular problem in the construction industry, prompting the creation of the Construction Workers Compensation Scheme (which closed in June 2016) and the issuance of government guidance.  

The Scottish Affairs Select Committee has strongly criticised blacklisting of workers in the construction sector, despite this practice having been made illegal in 2010.

Refusing to employ or blacklisting union members gives rise to legal claims for defamation, conspiracy and breach of data protection laws.  

It is unlawful for organisations to:  

• refuse employment to, or to blacklist, union members  

• refuse employment or sack individuals as a result of appearing on a blacklist  

• refuse to provide a service on the basis of an individual appearing on a blacklist Individuals or unions can pursue compensation or solicit action against those who compile, distribute or use blacklists.  

If a list of unsuitable applicants has been made for a purpose other than to discriminate against union members, or those who participate in trade union activity, the list will not be classed as a blacklist. This was the case in Maunders v Proteus Well Services Ltd and others ET case no 1810036/2010, where the reason for the inclusion on a security database was because of the claimant’s aggressive behaviour towards security staff, and not his trade union activities. It may be difficult for an organisation to provide the motive behind such a list, however.  

There are wider questions for organisations to consider when determining whether it is legitimate for them to put the names of former employees onto a list that can be accessed by other organisations.  

It would, for example, be highly problematic to include people’s names on such a list simply because they are regarded as ‘troublemakers’. Concerns may also arise in relation to data protection, for example:  

• the requirement to tell individuals how information about them is used, and to allow them access to that information  

• the right for individuals to request removal or deletion where there is no compelling reason to keep processing the data  

• the difficulty of reliably verifying that a candidate’s identity is the same as one on a list  

• the difficulty in ensuring that information is accurate and that reasons for inclusion are verified  

• personal data should not be processed for longer than is necessary, and events that occurred previously are less likely to be relevant to a candidate’s suitability later on. 

There may, however, be cases where the production of a list is legitimate, for example, where the organisation owes a duty of care to vulnerable people. In healthcare sectors, individual organisations might wish to share information about employees where there is evidence of the kind of misbehaviour that would put patient safety at risk because the duty of care to patients is the overwhelming duty.  

In such cases, the duty to share information might not be limited to the organisation itself, but might apply to wider organisations such as the NHS, or local authority, or client, whose reputation is liable to be affected by recruitment practices in the sector and is in a position to exercise authority or offer advice to organisations.  

A critical element for the organisation to consider is whether there is evidence of actual wrongdoing. Where this evidence is already in the public domain, it may be legitimate for organisations to draw this to the attention of the prospective employer. It will not be fair to the individual concerned, however, to make information based solely on suspicion, or hearsay, or derogatory opinions widely available.  

In the health, education, care and other sectors where vulnerable people are at risk, employers have a duty of care to protect them. Evidence of inappropriate behaviour that places these people at risk should be recorded. If the organisation is approached from a prospective employer, it would be a breach of their duty of care to other vulnerable people to not disclose this evidence to the prospective employer.  

In summary, producing a list of people who are not judged suitable for further employment in a specific sector will not necessarily be unlawful, but should only be considered where there is a legitimate purpose for producing the list. This is an area of law where future developments and regulation can be anticipated. 

• It is unlawful to produce or use lists of individuals in order to discriminate against them because of their trade union membership or involvement in trade union activity; organisations should not undertake this.  

• The production of lists that are created with the purpose of safeguarding the welfare of vulnerable groups is unlikely to be unlawful. However, organisations should take care and have regard to data protection legislation and discrimination laws.  

• Where potentially damaging information about individuals is shared with other organisations, it is good practice to make clear who has been responsible for sharing the information and can be approached for further details if necessary.  

• Individuals should be made aware if their name has been added to the list, and given the opportunity to challenge it.  

• In any case, where an individual is refused employment because their name is on a list, that information should be shared with them.  

• It will be unfair to individuals to make information based solely on suspicion, hearsay or opinion widely available.

CIPD research suggests that an increasing number of organisations are outsourcing elements of their recruitment activity, for example to recruitment agencies. Recruitment agencies fulfil an essential role in the UK’s flexible labour market and the recruitment sector has worked hard in recent years to maintain its reputation and promote good employment practices. The work of regulatory bodies, such as the Employment Agency Standards Inspectorate, is also helping to improve the practices of agencies.  

Not all checks can be outsourced to a recruitment agency. Right-to-work documents have special rules which apply as set out in section 3 above. From April 2022 the rules envisage that employers will outsource digital identity right to work checks for British and Irish citizens who hold a valid passport (including Irish passport cards).  

For these checks, an Identity Service Provider company (IDSP) must do the checks using Identification Document Validation Technology, rather than a third party, such as a recruitment agency or professional adviser. The employer not the IDSP remains liable for civil penalties if the employee is later be found to be working without permission and the check has not been completed correctly. Using an IDSP correctly does establish a defence towards liability, whereas a third-party check by a recruitment agency or professional adviser would not.  

Particular issues in relation to other pre-employment checks can arise, not only for organisations that use employment agencies, but more generally in managing the supply chain. Some companies offer an employee vetting service independent of labour supply, whereby they are engaged at the offer stage and the candidate supplies personal details to be checked by the third party on behalf of the organisation. HR and recruitment consultants may also act as intermediaries, for example by supplying vetting specialists to sit alongside organisations’ payroll teams.  

Baseline checks might include establishing the right to work in the UK, identity and reference checks to validate skills and experiences. Employment agencies may also offer specialist help in conducting the detailed checks required in specific sectors, such as finance or IT. Although organisations may believe they can avoid the need to engage in time-consuming statutory and other checks by using the services of employment agencies, they will not protect themselves against possible reputational damage by distancing themselves from the recruitment process.  

Organisations should have contracts in place with employment agencies to guarantee data security and quality.  

Organisations that use employment agencies or other intermediaries to help recruit workers should:  

• choose a reputable agency that takes steps to protect its own reputation (for example, through membership of professional bodies, such as the Recruitment and Employment Confederation and adherence to good practice guidelines in recruitment of job-seekers)  

• agree what specific pre-employment checks are necessary and appropriate, ensuring these are non-discriminatory and relevant to the role 

• set out which checks are necessary in the supply agreement  

• be clear about respective responsibilities; duplication in checks is preferable to leaving gaps  

• be clear about the employment status of staff supplied by the agency and ascertain whether they are employed by the organisation  

• ensure checks are carried out in relation to both permanent and temporary staff  

• be aware of any secondary suppliers and establish which agency takes responsibility for the vetting process as a whole.

The Ethical Trading Initiative (ETI) is an alliance of companies, trade unions and voluntary organisations that aims to improve the lives of poor and vulnerable workers across the globe who make or grow consumer goods.  

The ETI has published a base code that draws on ILO conventions and contains nine principles, of which the eighth requires that ‘regular employment is provided’. Clause 8.2 of the code says that employment regulations ‘shall not be avoided through the use of labour-only contracting [or] subcontracting’.  

Because labour-only workers are self-employed, contractors pay no National Insurance contributions, sick pay or holiday pay. The Construction Industry Scheme (CIS) is a set of special rules for handling payments for construction work that contractors make to subcontractors and applies to all construction work carried out in the UK. HMRC also publishes an Employment Status Indicator (ESI) tool that enables an organisation to check the employment status of an individual or group of workers, clarifying whether they are an employee or self-employed for tax, VAT and National Insurance purposes.  

Labour-only subcontractors and their workers will generally be self-employed, in which case the issue of pre-employment vetting will not strictly arise.  

But organisations will want to:  

• be confident that labour-only subcontractors are reputable  

• incorporate in commercial contracts a requirement for subcontractors to follow the guidance on good practice in this guide  

• ensure that labour-only subcontractors meet their legal obligations, including where appropriate under the Construction Industry Scheme. 

The exact pre-employment process to be followed will differ between organisations, and will depend on the nature of the vacant role. However, due diligence in carrying out proper and accurate checks will result in the following benefits:  

• more informed recruitment decisions  

• reducing the potential risk to the organisation of recruiting unsuitable candidates, particularly for those working in sensitive roles  

• compliance with legal and regulatory obligations  

• preventing discriminatory decision-making  

• improved recruitment and retention rates  

• lower recruitment costs  

• greater morale and reduced disruption across the workforce.  

Organisations will also need to consider the practical implications of carrying out preemployment checks and ensure the recruitment process provides the opportunity for further assessment of suitability once these are carried out. Making offers of employment conditional upon the carrying out of satisfactory checks will allow organisations to take appropriate action, should the individual be deemed unsuitable for the role following additional disclosure of relevant information. 

Further information on the recruitment process and pre-employment checks can be found in the employment law resources available online on the HR-inform website.  

A list of the applicable right to work guidance differing by the date employment commenced: 

Employers sponsoring an employee’s visa will need to pay:  

• The fee for a certificate of sponsorship, currently £199  

• An annual sponsor licence fee, £1,476 for medium or large businesses, and £536 for small businesses  

• An annual immigration skills charges (see below).