Recruitment has long been an involved and complex process, as Employers endeavour to ensure that their investigations into a potential recruit do not fall foul of the law.
Whereas, traditionally, information about applicants would be gathered through a CV, questioning and references, there are now other avenues through which employers can get information. In this month’s bulletin we look at some recent developments concerning the information that is available to employers, along with the potential pitfalls of using it.
National Staff Dismissal Register
Earlier this year the National Staff Dismissal Register was set up by Action Against Business Crime (AABC). The aim of the register is to reduce the massive amount (£2.9 billion over the last 6 years) that is lost every year due to staff theft and fraud. The website is a privately run service (the database is run by Hicom Business Solutions) where members pay a joining fee and are then able to search for information about potential new employees. Employers are also able to post information on the site about ex-employees to warn off any other companies that are contemplating employing them.
The database is designed to hold details of employees who are dismissed (whether the subject of criminal prosecution or not) or who have left the company whilst under suspicion of:
- Theft or attempted theft from employer/suppliers/staff or customers.
- Falsification or forgery of documents.
- Fraudulent acts.
- Causing loss to the employer or a supplier.
- Causing damage to the employer’s property.
Unions and civil liberty groups are strongly against the register and they say that there is no protection offered to those who are wrongly accused of acts that they have not committed, especially as the register can also include information about those who left employment before the matter could be investigated. The operators of the database state that if an employee makes a request, they are entitled to a copy of the information the database holds about them and they can then challenge any information that they believe is inaccurate. The company also points out that if employees have any complaints about the information that is held about them then they can apply to the Information Commissioner for a ruling on the matter. However, there are major concerns that employees may not be aware that they are on the register and, therefore, they will not be able to contest the information that is on it.
Aside from the due process problems caused by the database, there are concerns that the system does not comply with the Data Protection Act. Hicom insist that they have followed data protection guidance and that they will ensure compliance by ensuring that only companies who are able to comply with the requirements of the Data Protection Act are able to participate in the scheme.
Although this system could potentially provide an employer with useful information, there are also potential problems an employer could encounter when using this system. There is, theoretically a risk of employees bringing claims of discrimination, arguing that they have been entered onto the register because they belong to a particular group and that they have subsequently suffered a detriment. In addition, if an employer has dismissed an employee for one of the offences that the register applies to and the ex-employee has brought a claim for unfair dismissal, then the register may mean that compensation will be higher, as entering an employee on the register may result in a longer period of unemployment and therefore a higher figure for loss of earnings. Employers may also risk civil claims for actions such as misrepresentation and defamation.
Another recent development connected with the recruitment of staff is the case of R (on the application of John Pinnington) v Chief Constable of Thames Valley Police which concerns the content and use of CRB checks. This case was an application for judicial review that was brought by an employee who worked as a deputy head for a college for young people with autism. The employee’s employment was transferring to a charity that was to run the college. The charity made it a condition of employment that employees had a clean CRB enhanced disclosure certificate.
It is open to the Chief Constable of the relevant police force to put information on a CRB certificate in addition to the offences listed on someone’s criminal record. In the case of Mr Pinnington, he had never been convicted of an offence, but had been accused on three separate occasions of sexually assaulting young autistic men in his care. The Assistant Chief Constable (acting on behalf of the Chief Constable) gave details of these accusations on the CRB certificate and consequently the employee was dismissed.
The employee was of the opinion that it was unreasonable for the Chief Constable to make these comments as, in his opinion, there was no chance that these allegations were true. The Court did accept that there were many evidential problems with the allegations and that none of these matters had been pursued. However, the Court held that the Chief Constable was entitled to include information on CRB certificates that ‘might be true’ and that the test to be applied in this situation was a straightforward ‘Wednesbury’ test. In other words, the question that the Court needed to ask itself was whether the decision that the Chief Constable made to disclose the information was so unreasonable that no other decision maker in his position could have reasonably made the same decision. It was held that the decision to disclose the information was not ‘Wednesbury unreasonable’ and that the Chief Constable was entitled to disclose this information.
In the alternative, the employee argued that there should have been some explanation on the CRB certificate of the circumstances surrounding these allegations and the evidential issues with them. The Court held that this was not necessary, as it was open to the employee to explain the allegations to the prospective employer.
An unfair dismissal claim was not made in these circumstances, although the judge expressed surprise at this. Mr Pinnington had the required service; as his employment was transferring, he was not a new employee. Richards LJ did comment on the potential impact that this judgement may have on how CRB checks are treated by an employer. Richards LJ stated:
‘The legislation imposes a relatively low threshold for disclosure in the certificate in order to enable an employer to make a properly informed decision. But it is important that employers understand how low that threshold is and the responsibility that it places in practice upon them. A properly informed decision requires consideration not only of the information disclosed in the certificate but also of any additional information or explanation that the employee may provide’.
Like the National Staff Dismissal Register this case highlights the fact that employers have access to information about staff that may be true, but is in fact only an allegation or suspicion. Therefore, as the Court warns in Pinnington employers need to be wary of relying on information such as the above without further investigations. Employers should not impose a blanket policy whereby only those with a clean CRB certificate will be employed, as this may not give employees an opportunity to explain the situation and put forward any mitigating circumstances. It is also important that employers only request the appropriate level of CRB for any given employee. Enhanced disclosure should not be required if it is not necessary for the role.
Employers are put in a difficult position, as they also owe a duty of care to the children and/or vulnerable adults for whom they provide a service. This duty has to be balanced against the requirement to treat an employee fairly. In most situations it is unlikely that a prospective employee will be able to bring a claim against their prospective employer because they will not have the required length of service. However, transferring employees may have the required service and there may be the possibility of a discrimination claim if all CRB checks for different groups of employees are not handled in the same way.
The important point that employers should note in relation to both CRB checks and the National Dismissal Register is that, if they are used, they should form part of a well-rounded and thorough recruitment procedure and they should not be relied upon without conducting further investigations.
If you require further advice or assistance with regards to recruitment procedures please contact Burnetts’ Employment Team on 01228 552222.
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Published: Friday 3rd October 2008