The use and misuse of background checks

Employers want to know as much about job candidates as they can but there are limits on what kind of checks can be carried out and employers need to know how far they can go. Our article gives information on the various types of checks available and guidance on limitations.

One problem that almost every employer faces when recruiting is how to determine whether a candidate will be suitable for both the business and the role? Employers will deem it prudent to try and find out as much about a potential employee before offering them the job.

However, the desire to know that little bit more about the person sitting across the interview desk from them before the offer is made should perhaps be tempered by consideration of where they’re finding that information and the consequences of doing so.

It’s a tricky balancing act – employers want to find out as much as they can about potential employees so that they can be sure they hire the best candidate, but they also risk the possibility of overstepping the mark when it comes to the Data Protection Act 1998, which is as applicable to the recruitment process as to any other activity that the employer might choose to undertake. Therefore, if the employer collects or uses information about the people who have applied for a position without taking the Data Protection Act into account, they may find that they will face consequences.

When gathering information on candidates, employers need to remember that anything they do gather can be revealed through a data subject access request. Employers should think about what might be disclosed through such a request and consider whether they would be happy with that. Searches of social media to discover information on candidates for posts might reflect badly on those who carry them out.

Although candidates might be happier with checks which can be justified on the grounds of the nature of the post to be filled, searches of social media sites will most likely be perceived as personal rather than professional and be less warmly welcomed.

Vetting

Vetting, the process of actively searching for information extra to what has already been supplied by an applicant, is often seen as a more active (and potentially intrusive) step in the recruitment process. If it must be carried out, then several things should be taken into consideration.

• The employer should be upfront about the vetting, informing all applicants what will happen and the form it will take.

• Vetting should not take place at the first stage, or even in the early stages of the recruitment process; rather an adjunct thereto.

• Whatever is discovered should be shown to applicants to give them the right of reply and correction of any inaccurate information.

• The objectives of the vetting should be clearly laid out, ensuring that specific information relevant to the vacancy is obtained through any information searches.

• When searching for information, care should be taken that only reliable sources are used.

Online and social media checks

Because social media websites are becoming increasingly ubiquitous, it can be a temptation for employers to make use of them to gain insight into an applicant’s background and personal life; both things that are unlikely to be fully disclosed in an interview. An applicant might not wish to mention their political views or attitudes on certain social issues in front of their potential boss, whilst they might be more forthcoming in the more informal and relaxed arena of Twitter or Facebook.

Employers should bear in mind that because of the fluid nature of social media, information that can be found there may be unreliable and subject to confusion, particularly concerning user identity. Facebook now insists that users register with their real names, but Twitter has no such requirement. Can an employer be certain that they are looking at the person at whom they think they are looking? If the subject of the search has a particularly common name, they may end up being the victim of mistaken identity.

Some employers might attempt to use deceptive methods to access an applicant’s social media account. Setting up a fake identity in order to lull the applicant into a false sense of security and perhaps entice them to reveal more about themselves than they might otherwise do in the setting of an interview has been warned against by the Information Commissioner’s Office and the repercussion for employers who attempt this tactic would more than outweigh any perceived gain that the method might achieve.

The ICO has also advised employers that it is not acceptable for employers to ask applicants for their username and password so that their social media accounts can be reviewed to find anything that might influence their applications. If such practices are discovered and made public, it can mean that other candidates may choose not to apply for posts with the organisation.

It should also be considered that such methods can be rather like a drift net, picking up not just the required information but plenty more besides, some of which may well apply to protected characteristics under the Equality Act 2010. If such information is obtained by the employer, albeit inadvertently, the applicant could claim (if they are unsuccessful in their application) that the decision not to hire them was due to one of those characteristics. It would be very difficult for an employer to disprove the allegation that the information had influenced, albeit in some small way, their decision. It is better for an employer not to put themselves in that position in the first place.

Right to work and criminal background checks

No matter what approach the employer takes to investigating the background of applicants, they cannot avoid their obligation to carry out right to work checks for all workers and criminal background checks where the position involves work with vulnerable groups such as children or the disabled.

In 2015, Section 56 of the Data Protection Act became law, meaning that it is now a criminal offence if an employer forces an employee or applicant to obtain a copy of their criminal records through the subject access request scheme and then hand it over to the (potential) employer as a condition of their recruitment or continuing employment.

In conclusion, the employer should err on the side of caution when it comes to researching potential candidates for employment and put themselves in a position where they are able to objectively justify any vetting measures that are taken.

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