Employers and Recruitment Agencies

Employers and Recruitment Agencies

We have listed the most frequency asked question for Employers and Recruitment Agencies in this section, if you would like to add to the list please contact us.

CHARACTER REFERENCES INFORMATION

What are character references?

A character reference, also known as a ‘personal reference’, is a general assessment of a candidate that comes from someone who…

has known the candidate for some time (ideally three years or more) on a personal level; and,
is not a relative; and,
has not worked with the candidate in a traditional job setting.
Character references are often used by prospective employers to find out a little more about a candidate. The idea is to have a general assessment of the candidate’s qualities beyond a normal work environment.

Are character references really worth it?

Character references are particularly useful if the candidate has not been employed previously (e.g. recent graduates or school leavers), or if there are significant gaps in their CV. In such instances where professional references may not be available, character references provide a useful alternative. Also, some organisations (e.g. trusts, councils, religious organisations etc.) explicitly require such references to be provided by a person who has a reputation in the community (e.g. a bank manager, judicial official, etc.).

Understandably, candidates will usually request references from referees that will portray them in a favourable light. Therefore, a common criticism within the HR community is that character references are valueless. As a stand-alone piece of information, this is partly true. However, character references do enrich the picture when taken in combination with other information. They can serve as part of the base to engage in open and honest dialogue with the candidate in the limited time available to get to know them during a selection process.

What are the legal implications of requesting character references?

In the UK, the 1988 Data Protection Act has important implications for character references. Individuals have rights of access to the data held about them, even when references are marked as confidential. Because you cannot control what information will be included, great care should be taken, when sensitive data is included, to comply with anti-discrimination legislation such as the Equality Act 2010. Sensitive data includes:

racial or ethnic origin;
political opinions;
religious or other beliefs;
trade union membership;
physical or mental health or condition (including disability);
sexual life or criminal record.

What is the best way to obtain character references?

Obtaining character references successfully should include the following steps:

Step 1: Preparation

Implementing character reference checks is most effective if it is part of your overall recruitment policies and procedures. It is vital that anyone involved in the process has a good understanding of how to request character references, and the legal implications of doing so. Furthermore, legal advice should be taken in the production of all documents or forms that are to be used, in order to ensure compliance with all relevant data protection, human rights legislation, industry guidelines, etc. Given the amount of time and work involved, some companies prefer to outsource the process to agencies, such as Sanctis, which specialise in pre-employment screening services. The advantages, in terms of compliance, and time and cost savings, are compelling. In this case however, communication and process integration are key to maximise the benefits.

Step 2: Requesting the references

Candidates should be asked to provide contact details of at least two or three referees, preferably people known to them in different personal contexts. The candidate should have a clear understanding of the purpose of the character references and what information you plan to obtain. It is also a good idea to obtain the candidate’s written consent for information to be disclosed to you. Some referees may insist on seeing this before they will respond to your request for a reference. This is unlikely to be necessary however, if the candidate has already asked the referee to provide a reference to you.

Step 3: Contacting the referees

Referees can be contacted either in writing, or directly by telephone. A phone call can be a faster and more personal way of obtaining a reference, however taking up oral references requires interviewing skills, time and resources. Collecting references in writing provides referees with more time to reflect on the questions and wording of answers.

Step 4: Collecting the references

Companies can either request that character references be submitted as an open letter, or as a structured form. Whilst open letters can be more spontaneous, structured forms allow companies to probe specific qualities. For example, questions may include:

How long and in what capacity the referee has known the candidate?
The referee’s opinion of the candidate’s integrity and honesty.
What aspects of the candidate’s character or ability does the referee recommend?
Whether the candidate is reliable and does what they say they will do?
Whether the candidate is considerate by nature? Do they think of others?
Does the candidate show good judgement in difficult situations?
Has the candidate shown they can stick with a task until it is completed?
Step 5: Wrapping it up

Character references are likely to include a mix of facts and opinions, and the two should be differentiated. Whilst facts can confirm the accuracy of the statements made in an application, it is important that the recruiter takes the time to build their own opinion by cross-referencing various elements of information from the sources available.

EMPLOYER REFERENCES INFORMATION

What are employer references?

Employer references are statements from previous employers that confirm what a candidate has said at the various stages of the selection process. Employer references may contain facts (such as dates of employment, job title, etc.) as well as opinions about the candidate; they are usually issued by the HR department, former manager or an ex-colleague qualified to do so on behalf of the company.

What is the best way to obtain employer references?

Obtaining character references successfully should include the following steps:

Step 1: Preparation

Implementing employer reference checks is most effective if it is part of your overall recruitment policies and procedures. It is vital that anyone involved in the process has a good understanding of how to request employer references, and the legal implications of doing so. Furthermore, legal advice should be taken in the production of all documents or forms that are to be used, in order to ensure compliance with all relevant data protection, human rights legislation, industry guidelines, etc. Given the amount of time and work involved, some companies prefer to outsource the process to agencies, such as Sanctis, which specialise in pre-employment screening services. The advantages, in terms of compliance, and time and cost savings, are compelling. In this case however, communication and process integration are key to maximise the benefits.

Step 2: Requesting the references

Candidates should be asked to provide contact details of at least two or three referees, preferably individuals who were in a position to appraise his or her work performance among the current and most recent employers. This must be made clear at the earliest stage of the recruitment process. The employer must also make it clear that they alone will determine what constitutes satisfactory references. The candidate should have a clear understanding of the purpose of the employer references and what information you plan to obtain. It is also a good idea to obtain the candidate’s written consent for information to be disclosed to you. Some referees may insist on seeing this before they will respond to your request for a reference.

Step 3: Contacting the referees

Referees can be contacted either in writing, or directly by telephone. A phone call can be a faster and more personal way of obtaining a reference, however taking up oral references requires interviewing skills, time and resources. Collecting references in writing provides referees with more time to reflect on the questions and wording of answers. In any case, the employer must inform them that the subject of a reference has the right to access the reference unless it is marked as ‘strictly confidential’. The employer must also inform them that even in such case the candidate has the right of appeal to the Information Commissioner, who may compel disclosure.

Step 4: Collecting the references

Companies can either request that employer references be submitted as an open letter, or as a structured form. Whilst open letters can be more spontaneous, structured forms allow companies to probe specific qualities. For example, questions may include:

How long and in what capacity the referee has known the candidate.
Length and dates of service of the candidate.
Positions held and key responsibilities.
Performance.
Punctuality and periods of absence.
Integrity.
Relevant personal information.
Reasons for leaving.

Step 5: Wrapping it up

Employer references are likely to include a mix of facts and opinions, and the two should be differentiated. Whilst facts can confirm the accuracy of the statements made in an application, it is important that the recruiter takes the time to build their own opinion by cross-referencing various elements of information from the sources available.

Do employers have to provide references?

Employers are not legally obliged to provide a reference for a current or former employee. In practice however, recent case law indicates that there can be a moral obligation on a current or recent employer to provide a reference, as refusal to do so may damage the individual’s opportunity of securing a job. There are also situations where employees may be legally entitled to a reference, for example:

The employee’s contract of employment states that he/she is entitled to a reference.
Some regulated industries, such as financial services, require employers to provide references.
The employer normally gives references to employees; refusing to do so for a specific employee could lead to claims of discrimination or victimisation.

What are the legal implications of giving employer references?

Duty of care

When giving a reference, the ex-employer has a duty of care to the candidate, which implies that the reference must be true, accurate, fair, and not give a misleading impression. The employer may otherwise be liable for damages to that person if loss is caused through negligence or defamation. The reference, however, does not have to be full and comprehensive – many companies nowadays limit their references to confirming the dates of employment and job titles of the employee.

In giving references there is also a duty of care to the potential employer seeking the reference. Relevant and material facts and information should be truthfully disclosed, especially where problems or difficulties have been experienced with the candidate’s conduct or capability. In this case the candidate must have been made fully aware of these issues at the time of the incidents occurring, and given opportunity to address them. As mentioned previously, it would be bad practice to include issues in a reference which had not been addressed directly with the employee – recent legal cases also support this.

Confidentiality

Under the 1998 Data Protection Act, the author of a reference (the “referee”) does not have to disclose the references to the candidate who is the subject of the reference. However, the candidate may be entitled to see the reference by making a subject access request to the organisation that receives the reference.

If the referee wishes to keep a reference confidential, they must mark the reference as “strictly confidential”. In this case, the organisation that receives the reference can refuse the subject’s access request. Even so, the subject of a reference has the right to appeal to the Information Commissioner who may, in some circumstances, compel disclosure.

The ex-employer’s duty of care obliges them to provide a reference that gives an accurate and fair impression. Therefore good practice suggests that there should be nothing included in a reference that the employer would not be prepared to discuss openly and justify to the employee.

What are the do’s and don’ts in providing employer references?

Because of the legal implications, it is becoming increasingly common for employers to establish strict guidelines regarding the provision and approval of references. In many organisations, it is customary for the HR function to process and vet all references. The checklist below summarises good practice we’ve identified across clients. Even so, in case of doubt we advise you to obtain legal advice.

When requesting employer references, you must …

Respond to reference requests as quickly as possible.
Be fair. You have a duty of care to the person asking for the reference and to the person about whom you are writing.
Be consistent in how you give references. Give a similar length and similar level of detail for all requests.
Be able to corroborate all statements contained in the reference with evidence, capable of independent verification.
Ensure that the employee was fully aware at the time of any complaints or negative comments that are to be included; and in such case, appropriate management action must have been taken.
Ensure that opinions are clearly stated as opinions, and based on verifiable facts; the reference must be given by someone who is qualified to give such opinions.

Ideally, you should also…

Give the reference in the manner requested by the employer. For example, use a pro forma if it has been supplied.
Mark all references “private and confidential”.
Maintain records of all references given and copies of the information on which they were based.

You must never ever…

Comment on alleged misconduct where there has been no proper investigation.
Give a misleading impression, even if individual components of a reference are accurate, for example by focussing on negative facts and omitting more positive facts about the employee.
Use emotive and coloured language, especially if the comments are negative;
Express opinions or highlight weaknesses that are not relevant to the job. If you do refer to a weakness provide a positive counter balance.
Give opinions that are defamatory.
Give opinions that you aren’t competent to give. For example, “he will be a great success in the job” would be better phrased as “I believe he is well suited to the job.”

You shouldn’t …

Refuse to write a reference without giving clear reasons to the employer (an unexplained refusal will be implied as a negative opinion).
Write anything in a reference which you would not wish the candidate to see.
Give “off the record” references, perhaps over the telephone. A prospective employee could request access to the phone records in the course of litigation.

CRIMINAL RECORD CHECKS INFORMATION

What are criminal record checks?

Criminal record checks consist of verifying records held by the Police, the Department of Health, and the Department of Education & Skills. In practice this is done by liaising with the Disclosure and Barring Service (for England and Wales) and Disclosure Scotland (for Scotland), both of which are government bodies that operate as a single point of contact. Criminal record checks differ from simple police checks, which only disclose information stored on the Police National Computer (PNC).

What information is verified?

In the UK, there are three levels of check: Basic, Standard, and Enhanced, which correspond to different levels of information.

  • Basic check only contains details of current unspent convictions or states that there are no such convictions. It is available to any candidate applying for any role, across all industries.
  • Standard check shows spent and unspent convictions, cautions, reprimands and warnings held on the Police National Computer (PNC). However, it doesn’t include a check of the ISA’s barred lists, therefore this level of check is not suitable for those working with children or vulnerable adults. An employer can only require a Standard check if the role is an exception to the Rehabilitation of Offenders Act 1974.
  • An Enhanced check contains the same information as the standard check, as well as information held by the local police forces based on the address history provided by the candidate. It may also determine whether the candidate is included in the Children or Vulnerable Adults barred lists. Similar to Standard checks, an employer can only require an Enhanced check if the role is an exception to the Rehabilitation of Offenders Act 1974.

The table below gives an overview of information included with each type of criminal record check.

BASIC STANDARD ENHANCED
Unspent convictions YES YES YES
Spent convictions NO YES YES
Cautions NO YES YES
Inclusion on children’s lists NO NO YES
Inclusion on adults’ lists NO NO YES
Other relevant information held by police forces NO NO YES

 

 

What are the key legal concepts to know?

Rehabilitation of Offenders Act 1974, Spent and Unspent convictions.

The Rehabilitation of Offenders Act 1974 (ROA) aims at rehabilitating ex-offenders by not making relatively minor offence affect the rest of their lives.

Under the ROA, anyone given a prison sentence of no more than two and a half years is eligible for a rehabilitation period, which depends on the sentence and may last up to 10 years. Once the rehabilitation period has ended, the conviction becomes spent and, as an employer, you cannot ask a candidate to disclose spent convictions. A candidate with spent convictions can truthfully answer “no” to the question “do you have a criminal record?” and you cannot refuse to employ him or her on the basis of spent convictions.

On the other hand, an unspent conviction is one where the rehabilitation period has not expired. A prison sentence of more than two and a half years is not eligible for the rehabilitation period and will never become spent.

Exceptions to the Rehabilitation of Offenders Act 1974

Certain types of roles are exempt from the Rehabilitation of Offenders Act 1974, which means that for these roles an employer can require the disclosure of a candidate’s criminal record,

including spent convictions.

Examples of exceptions to the Rehabilitation of Offenders Act 1974 include:

  • Positions involving work with children and vulnerable groups.
  • Positions within the justice system, such as solicitor, police, prison officer, etc.
  • Positions within government and public authorities.
  • Positions in health care services.
  • Specific positions in the finance and insurance industries.

For a full list of occupations and employments that are exceptions to the Rehabilitation of Offenders Act 1974, click here.

In what circumstances should I require a criminal record check, and at what level?

It is recommended, but not always compulsory, to carry out criminal record checks for roles that are exceptions to the Rehabilitation of Offenders Act 1974. Other legislation however may determine that a criminal record check is mandatory for specific roles. For example, under the Criminal Justice and Court Services Act 2000 and the Child Protection Act 1999, it is a criminal offence for people with certain convictions to apply for and work with children and vulnerable adults. Furthermore, regulations specific to your industry may render criminal records checks compulsory for certain roles. This is for example the case in the security industry.

Albeit flexible, UK laws tend to shift the responsibility and potential liabilities onto employers who have the difficult exercise of striking a balance between the duty of care towards their business, employees, and customers on the one hand, and respect for individuals’ privacy on the other.

The different levels of check (Basic, Standard, or Enhanced) facilitate this exercise by helping you obtain enough information to make an informed hiring decision whilst satisfying any regulatory requirements and respecting the candidates right to privacy.

The diagram below provides some guidance as to in what situation you may require a candidate to apply for a criminal record check. We would, however, strongly recommend seeking professional advice to determine whether a criminal record is necessary for the roles you wish to fill, determine the right level, and understand your responsibilities in using the information.

How do I implement criminal record checks?

n England and Wales, only organisations that are registered with the Disclosure and Barring Service (DBS) are authorised to carry out Standard and Enhanced criminal record checks. This means that unless you are registered with the DBS, you will have to use the services of an umbrella organisation, such as Sanctis, which is authorised to process criminal record checks on behalf of non-registered organisations. Anyone can access Basic Disclosures with Disclosure Scotland.

Once you have identified a suitable umbrella organisation, we strongly recommend the following steps:

Step 1 – Carry out a risk assessment to identify the roles that are sensitive. With the help of the umbrella organisation, determine what types of checks are necessary (basic, standard, or enhanced), taking into account UK and industry-specific laws and regulations.

Step 2 – Criminal record checks are a fairly administrative and paperwork-intensive task. Small mistakes can delay the process at best, and jeopardise the candidate’s career at worst. It is therefore vital to agree with the umbrella organisation on the processes and communication flows between your administration and the umbrella organisation.

Step 3 – Gain prior written consent from the candidates and comply with the Code of Practice of the relevant governmental organisation (DBS, Disclosure Scotland). The Code of Practice incorporates principles of relevant laws (Data Protection Act, Police Act, Rehabilitation of Offenders Act, etc.) and provides guidelines on how personal information should be used, handled, and stored. It also protects applicants from unfair discrimination on the basis of non-relevant past convictions.

To view the DBS Code of Practice click here .

How long does a criminal record check take?

The complete turnaround time depends on (1) how long it takes for a candidate to return the application forms completed, without mistakes; (2) how long it takes for the DBS or Disclosure Scotland to issue the criminal record check. For …

  • Basic check, turnaround time normally is one week upon receipt of the completed application;
  • Standard check, turnaround time is normally two to four weeks upon receipt of the completed application;
  • an Enhanced check, turnaround time normally is four to six weeks upon receipt of the completed application.

How long is a criminal record valid for?

The police or other government department can update criminal records at any time. This means that criminal record checks could be out of date at any moment after being issued. For sensitive roles, we therefore recommend re-checking your staff on a regular basis.

Can I re-check my staff and, if so, how often?

As long as the candidate gives his or her consent and you comply with the Code of Practice, your organisation can re-check its staff as often as necessary.

The candidate already has had a criminal record check in the past. Can I use this one for a new role?

Strictly speaking, a criminal record check is only valid at the time of issue, and for the role it was associated with. In practice however, it is the organisation’s decision to accept or not accept a previous criminal record check. When making this decision the organisation will have to assess risks and take into account:

  • the length of time that has elapsed since that criminal record check was issued;
  • the level of the criminal record check (Basic, Standard or Enhanced);
  • the nature of the position for which the criminal record check was issued;
  • the nature of the new position and whether there is a statutory or regulatory requirement for a new check.

What should I do if I find out that a candidate has a Criminal Record?

As an employer, you are not allowed to discriminate unfairly against any candidate solely on the basis of a conviction or other information revealed in a criminal record check. This implies that you will have to provide the candidate with the opportunity to discuss and assess a number of factors such as the nature of the role, the circumstances and background of the offences, the candidate’s conduct since the offence, etc.

As part of the due diligence, we also recommend cross-checking the information through identity checks, character and employer reference checks, credit checks, professional qualifications, etc., in order to corroborate facts and provide a complete picture of the candidate.

For further information, we recommend checking the National Association of Reformed Offenders, UNLOCK, which has a comprehensive compilation of excellent guides to recruiting ex offenders, produced by the CIPD, NACRO, and other organisations. This is available here.

What if it turns out that there is a mistake in the criminal record?

In most cases criminal record checks are accurate. However there have been odd cases where an individual was mistaken for another one by the authorities (for example because the two persons share the same name and surname). If any of the information is disputed, please contact us immediately.

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