Employment background checks: everything you need to know to remain compliant in 2022

You’re responsible for checking that a candidate can work for your organisation – whether that’s by confirming their right to work in the UK, or checking their criminal record or health status. Find out which checks to you need to conduct, and how, during the recruitment and onboarding process

Think about what £20,000 can do for your business. It could go towards hiring a new employee, a training course, or for investing in crucial hardware or time-saving software. It may even contribute to a financial penalty.

These costs might not be planned, but a fine of up to £20,000 could be issued each time you don’t conduct your employment background checks correctly. It’s your responsibility as a UK employer to carry out such checks before agreeing to hiring a new starter. If not, then a fine could be the least of your worries.

Background checks will help protect your staff, prevent fraud, ensure compliance, boost data security, and inform you of a candidate’s trustworthiness. Find out which checks you must do during the hiring and onboarding process, how it may vary by candidate or role, and what you can do with this data.

In this article

• Right to work checks
• Criminal record checks
• Employee health checks
• Data protection considerations for your business
• Choosing the right employee background checking software

Right to work checks

Your business must check if a candidate is allowed to work in the UK before you agree to employ them. Employers have a legal responsibility to check that a candidate has the right to work in the UK.

One of the drivers of illegal migration is the potential to work illegally. People in this situation can be vulnerable to exploitation, meaning companies that do comply are undercut by corrupt organisations. Illegal working can negatively affect lawful workers’ wages, and it’s also linked to other abuses of the labour market. This includes tax evasion, breaching the national minimum wage, and exploitative working conditions.

If you conduct these checks and you employ someone believing they do have a right to work in the UK, but subsequently discover they don’t, the government says you have a statutory excuse against liability for a civil penalty. It means you won’t be penalised for employing an illegal worker if you do these checks correctly.

The Home Office has updated its right to work guidance for 2022, as part of an initiative to implement a digitised immigration system . Make sure you know what checks you need to conduct to confirm someone’s right to work in the UK, or you may be liable for a civil penalty of up to £20,000 per breach.

UK and Irish citizens

From 1 October 2022, employers can choose one of two methods to conduct right to work checks  for these potential employees. As well as checking documents manually, your company can use identification document validation technology (IDVT). This digital tool lets new starters confirm their identity, apply for DBS checks and prove their eligibility to work – all via the internet. Documents can be uploaded to this tool, rather than providing a physical version.

Valid passports (for UK and Ireland) or passport cards (Ireland only) can be checked using IDVT. A manual check must be conducted, or the correct Home Office online checking service used, if the employee wants to use other documents to confirm eligibility.

Employers must use an IDVT service provider (IDSP) certified to conduct these digital eligibility checks. Your business should validate the new starter’s identity with that verified by the IDSP and other provided documents to confirm eligibility to work. If the candidate’s name is different on documents, for instance, you must find out why and be satisfied the paperwork relates to this person before employment.

From 1 October 2022, employers can no longer carry out right to work checks on ID documents via video calls (such as Zoom or Microsoft Teams); they must use an approved IDSP. Look out for HR software providers, such as Ciphr, will be able to integrate their HR and recruitment solutions with approved IDSPs to streamline your right to work checking processes.

Citizens of other territories with eVisas

UK employers can conduct digital checks on potential employees  who are nationals from territories other than the UK and Ireland with these documents:

• Biometric residence permit (BRP) card – issued to people who have a visa of six months or more. Sponsored workers who’ve provided biometrics previously will have an eVisa, a digital version of a BRP
• Biometric residence card (BRC) – for family members of European citizens who themselves are not from a European state
• Frontier work permit (FWP) – for those from the European Union, Iceland, Liechtenstein, Norway or Switzerland who live outside the UK but meet requirements to work in the country

To correctly carry out an online right to work check , your business will need to:

• Request from the applicant a share code generated from Gov.uk’s prove your right to work to an employer page
• Use the online right to work checking service from the Home Office, with the share code and the person’s date of birth. Employment can start or continue if this check confirms their eligibility
• Verify the photograph provided with the online check is of the applicant
• Securely retain a copy of the response from this online check for the duration of employment, plus two years afterwards

These requirements apply to checks performed from 6 April 2022. Any employees with a BRP card, BRC or FWP with checks from before this date don’t need these done again retrospectively.

New employees who are nationals from the EU, European Economic Area (EEA) and Switzerland must have a valid pre-settled status, settled status or valid visa to prove their right to work . This was implemented on 1 July 2021; retrospective checks aren’t required on current EU employees if compliant checks were conducted before this date with a valid ID or passport.

For those waiting for a decision on their EU settlement scheme (EUSS) application, a person’s residence and working rights in the UK are protected during this time. Any EUSS applicants can also use a certificate of application issued after 1 July 2021, plus a positive verification notice on the Employer Checking Service, as proof of their right to work.

Your business must check a person’s status under the EUSS or have proof of an appropriate work visa under the points-based system. If there’s a time limit on an individual’s right to work, you’ll need to conduct a follow-up check before the expiry date – such as with a limited leave to remain, or pre-settled status under the EUSS.

Criminal record checks

Criminal record checks in the UK  are conducted by the Disclosure and Barring Service (DBS), and include a search of the Police National Computer (PNC). Some or all of a person’s convictions will be stated on the certificate, depending on the level of check that’s requested. All checks expire as soon as they’re issued because they’re correct only at that point, so these should be updated frequently, with many employers re-doing checks every one or two years.

A basic DBS check will show only unspent convictions. These checks can be requested by an employer or an individual, taking around 48 hours to be processed and about two weeks for the certificate to be received. Some nations ask for this check before issuing a travel visa.

A standard DBS check  is required for specific job roles, eg within financial services. This will go further into a person’s criminal record and, depending on the role, may show cautions or offences considered spent in other circumstances. The DBS will decide what to highlight on the certificate for each case, taking into account the crime, how long it’s been since it happened and what’s needed for the job.

An enhanced DBS check  is the highest level of check for a person’s criminal background and, in addition to a standard check, includes any recorded details from the PNC that may be relevant to the role. This will usually take up to eight weeks to be returned. Types of jobs that require an enhanced check include:

• Education (eg teachers)
• Healthcare workers with direct unsupervised contact with vulnerable people
• Childminders
• Social workers

Known as ‘regulated activities’, roles that involve working with children or vulnerable adults mean an enhanced DBS check with barred lists will be requested. This will also take up to eight weeks to be returned, and includes checking if the candidate is on either the children’s and adults’ barred lists (although the DBS will often check both). The name and details of a person on these lists will remain there for life.

To conduct a criminal record check on someone from another country, you’ll need to apply either in that country or to the relevant embassy within the UK . The process will vary, but you’ll need to apply to where your applicant has spent 12 months or more over the past 10 years since the age of 18. This also applies to any adult partners of the applicant.

Employee health checks

There are only two circumstances in which you can ask a successful candidate for a health check before hiring them , according to the UK government, which should be highlighted in the offer letter to your new starter. They are:

• If it’s a legal requirement (eg an eye test for commercial drivers)
• If it’s required as part of the role (eg by insurers for a cycle courier company)

In the 2010 Equality Act , section 60(1) highlights that employers can’t ask questions about health to a candidate before an employment offer – whether in person, by form, or through a third party (eg a previous employer). This is so organisations don’t make decisions based on a person’s physical or mental health, or any disability they may have.

Section 60(6) of the same Act states you can ask health or medical questions at this point to:

• Establish if a candidate needs any reasonable adjustments during the assessment to remove any disadvantages. A business can instead ask if a person requires adjustments
• Find out if a function essential for the role can be done
• Conduct applicant diversity monitoring
• Take positive action for those with a disability
• Evaluate if a person meets an occupational requirement to have a particular disability, eg a charity for the blind wants a project to be led by someone with a visual impairment

Your job offer can be conditional on an adequate medical check, which should focus on whether any reasonable adjustments need to be made by your company because of a candidate’s health condition. Your questionnaires should be completed by all new recruits, not just those suspected of having ill health or a disability.

Data protection considerations for your business

The 2018 Data Protection Act (DPA) and General Data Protection Regulation (GDPR)  affect how your business can gather, store and use data. Your HR activities are also impacted by these laws, including recruitment data and employee records and references.

Your organisation must show employees have been informed of how their personal data will be used, and they’ve received a clear explanation of how it’s treated. Your staff should consent freely to the use, purpose and processing of data.

You must prove your data protection compliance with auditing, training and documenting your processes, too, in addition to reviewing HR policies. You’ll also have to:

• Only collect data that’s relevant, necessary and adequate
• Identify, then limit, any damaging effects on a person’s privacy
• Anonymise data, or use data encryption for this process
• Be open about data processing, and allowing employees to monitor it

A person may submit a written subject access request (SAR) for information covered by the DPA, to which you’ll need to reply for free and within a month. A SAR may be tendered during an employment tribunal claim or disciplinary process.

Any data you have should be kept only as long as it’s required for its purpose. The business will need to consider why it’s retaining data, if there’s a legal requirement to keep it for a set time (eg for tax records), or to defend a potential claim (eg details of a candidate who now alleges discrimination). You should reply to correction requests in time, too.

Choosing the right employee background checking software

Background checks are vital processes for companies, so you’ll want reliable software that suits your requirements. That’s where Ciphr Connect comes in: not only can our identity and background checking software let you automate and integrate your checks with our HR and recruitment software, but you can choose which ones to conduct and submit your request through the Ciphr Connect platform. We partner with experts TrustID and Experian to deliver right to work and other background checks. Request a demonstration of Ciphr Connect now to find out how this software can be seamlessly integrated with your systems and processes.