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FAQ

General

Asylum & Immigration Checks

These checks can also act as general Identity Checks (i.e. a copy of the passport), for an Agency simply to check that the Candidates are who they say they are.

Important. Please read the following paragraph before continuing.

Leah Ley-Wilson Recruitment provides this information purely as a very basic guide and will endeavour to keep this information up to date. However, we are not employment law specialists and we will not accept responsibility for the use of said information by any third party.

Please note that, in our opinion, the best information on this topic is provided on the web by the REC and we recommend that you verify your requirements either via the REC themselves or via the Department for Business, Energy & Industrial Strategy.
The other port of call is the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which you can find at www.legislation.hmso.gov.uk/si/si2003/20033319.htm.

What sort of checks do you have to undertake?

The Asylum and Immigration Act of 1996 places the onus for checking a prospective employee’s eligibility to work in the UK firmly with the employer. Section 8 of the Act details the checks that an employer can do to ensure they have good defence should the employee ultimately be proved not to be allowed to work lawfully in the UK.

The potential employer should check and copy any one of a number of documents as outlined on the REC website. These include, (not exhaustively and in no order):

  • British passport
  • EEA passport or identity card
  • Residence permit
  • Passport or other travel document endorsed by the Home Office
  • Application Registration Card issued by the Home Office to an asylum
  • In most cases any document other than a British passport should show some Home Office endorsement allowing the holder to take up employment in the UK.


There are also specific combinations of two or more other documents which, if copied and checked as correct, will also allow the employer to establish a defence against unlawful employment of a candidate. These documents include, (not exhaustively and in no order of preference):

  • P45, P60, National Insurance card
  • Full birth certificate issued in the UK, Channel islands, Isle of Man or Ireland
  • Certificate of Registration stating the holder is a British citizen
  • Home office letter endorsing the holder’s ability to work in the UK.
  • Immigration status document endorsed by the Home office
  • Work Permit

The documents above can only be combined in very specific ways and we would recommend that you view the REC website for full details.

The employer also has a duty to check the details on each document so as to satisfy themselves that the candidate is the rightful holder of the documents in question. Check the photos, the date of birth, any expiry dates and any endorsements. If there are any inconsistencies, make sure you ask for further documentation which will explain the reasons for them. Examples of the sort of endorsements that might appear on a document are outlined on the REC website.

Finally the Home Office advises that the employer holds on to copies of the documents for at least three years after the candidate has started working with them.

For information on work permits try www.workingintheuk.gov.uk

Criminal Record Checks

Checking Criminal Records

Important. Please read the following paragraph before continuing.

Leah Ley-Wilson Recruitment provides this information purely as a very basic guide and will endeavour to keep this information up to date. However, we are not employment law specialists and we will not accept responsibility for the use of said information by any third party.

Please note that, in our opinion, the best information on this topic is provided on the web by the REC and we recommend that you verify your requirements either via the REC themselves or via the Department for Business, Energy & Industrial Strategy.

The other port of call is the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which you can find at here.

Introduction

It is quite normal for employers to ask candidates for details of any previous convictions. However, the Rehabilitation of Offenders Act 1974 allows anyone with a previous conviction of certain offences to keep that information confidential after the time, known as the 'rehabilitation period', has passed. (See the REC website for full details of these rehabilitation periods). These type of convictions are known as 'spent' convictions.

However, a conviction cannot be 'spent' if it incurred:

  • a sentence of more than two and a half years;
  • a life sentence;
  • preventative detention, or its equivalent for young offenders.

You should note that the Act does not apply to certain classes of occupations and offices. Some spent convictions may be grounds for refusing someone employment or dismissing him or her if the job is within certain named Excepted classes of employment and professions (see appendix one under Criminal Record Checks on the REC website for details). These include employment involving contact with children, young persons and the vulnerable, judicial work, prison work etc.

All of this therefore means that, unless you as employer are included in the list of Excepted Businesses, then you may only ask a candidate if they have any 'unspent' convictions. It would be unlawful to discriminate against a candidate because of a 'spent' conviction unless your business is listed as Excepted (see appendix one on REC website).

Disclosure checks

Disclosure Scotland can provide police checks on anyone, however, there are rules which are different for Employment businesses or Employment agencies and we would recommend that you look at the REC website for full details.

Employment Agencies, which introduce candidates for employment with the client direct are only permitted to obtain a Disclosure if the employer who will be employing the candidate is permitted to do so and only then once the offer of employment has been made.

Reference Checks

References

Important. Please read the following paragraph before continuing.

Leah Ley-Wilson Recruitment provides this information purely as a very basic guide and will endeavour to keep this information up to date. However, we are not employment law specialists and we will not accept responsibility for the use of said information by any third party.

Please note that, in our opinion, the best information on this topic is provided on the web by the REC and we recommend that you verify your requirements either via the REC themselves or via the Department for Business, Energy & Industrial Strategy.

The other port of call is the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which you can find at www.legislation.hmso.gov.uk/si/si2003/20033319.htm.

Introduction

There is no legal obligation on any employer to give a reference unless they have previously agreed to do so in the contract of employment. Employers must take extreme care in providing references and should not include any information in a reference without first checking the truth of any comments made. It is not unlawful to provide a 'bad' reference if the information given is accurate, truthful and not misleading and it is given in good faith without malice. Please have a look at the REC website for good examples.

Candidates' rights

A candidate or an employee who believes that a Referee has acted negligently by providing an inaccurate reference can bring a claim for damages against them for the loss suffered. There can of course be no action for negligence if the statement is true. The candidate or employee could also bring a claim for defamation. Defamation occurs where a false statement is made or repeated which is prejudicial to a person's reputation. It is for whoever makes the damaging statement to prove that it is true so any statements made in a reference should therefore be factually true and backed up with written evidence. Misleading omissions or innuendoes could also be defamatory and the REC website has some examples of such misleading information.

Rights of the recipient of a reference

If that recipient relies on a reference, which is inaccurate because it was carelessly drawn up, and thereby suffers loss, they could bring a claim for damages against the Referee on account of his negligence.

How can the Referee protect themselves?
The Referee may include a provision in the reference excluding any liability for the content of it. This can act as a deterrent against an action in negligence, however, the enforceability of such a provision cannot be guaranteed.

Candidates' right to see a Reference - Data protection considerations

Although a candidate or an employee has no general right to see a reference given about him or her it must not be assumed that references will remain confidential. The Data Protection Act 1998 has created the right for an employee to request sight of information, including written references about him/her, which an employer keeps on file. However the individual giving the reference also has the right not to have their personal data revealed without their consent. Therefore upon such a request an employer will have to balance any duty of confidentiality it has towards the giver of the reference as against the duty to provide to an employee information held on file about him or her. Provided that the identity of the referee is obscured the employer this is unlikely to breach its duty of confidentiality to them. However if the referee has not consented to the disclosure of the reference or it is not possible to keep the referee's identity confidential, for instance by blanking out names and other identifying information, then this may be grounds for refusing to disclose the reference.

Job offers 'subject to references'

Most job offers will be made 'subject to references' and it is vital that if a potential employer would withdraw an offer of employment upon receipt of unsatisfactory references that offers are made 'subject to references'. Failure to make a job offer 'subject to references' could result in an action for breach of contract being brought against the potential future employer if bad references mean that a job offer previously made unconditionally is then withdrawn.

Permanent Candidates and Clients

The REC Model Terms of Business for the Introduction of Candidates by an Employment Agency place the onus on the client to take up references and satisfy themselves as to the candidate's suitability. Even if a client requests you, the agency, to take up references you should advise the client to verify the truth of any references obtained in order to avoid liability for any loss suffered by the client as a result of a false or misleading reference.

Piper Ley-Wilson