Getting to know you...

Pre-employment verification checks are on the increase. Action Against Business Crime (AABC) has launched a new service for retailers to help them carry out these checks. The service allows members to share information relating to individuals who have been dismissed or have left employment while under investigations for acts of dishonesty, and then use this shared resource to carry out checks on new employees.

But where does pre-employment vetting stand from a legal perspective?

Whether you use a service like this, carry out Criminal Records Bureau checks or simply rely on old fashioned references, there are many legal issues which must be considered when you carry out a pre-verification check or share information about ex-employees.

• Employers have a duty not to discriminate against employees, even after they have left employment. So, in providing information, employers must be certain it isn't tainted by any discrimination: was this employee really sacked for stealing or was it because she complained about her boss's sexism? And, in using information obtained, employers need to ensure that they are not giving weight to criteria which could be discriminatory.
• When providing information about ex-employees, it is vital to ensure that it is not tainted by any emotional reaction to their departure - stick to the facts. If you circulate incorrect or mistaken information more widely than is strictly necessary, or in circumstances where you ought to have known that the information was incorrect, you will incur liability in defamation if the information is damaging to the individual concerned. Defamation claims are now often brought on a conditional "no win, no fee" basis, making this type of claim much more readily available to everyone.
• Information about a prospective or ex-employee is likely to be personal information about that individual, and is therefore regulated under the Data Protection Act 1998.
• Information about offences or alleged offences will constitute sensitive personal information, and has additional restrictions attached to it.
• The Employment Practices Code issued by the Information Commissioner's Office (who regulate controllers of personal information) provides specific guidance in this area, including:
  • only use vetting where there are particular and significant risks involved to the employer, clients, customers or others, and where there is no less intrusive and reasonably practicable alternative.
  • seek to obtain information from the worker first, and if necessary verify it, rather than undertake vetting via a third party
  • only carry out vetting as late as possible in the recruitment process
  • make clear to all prospective employees that vetting will take place - and how
  • ensure that you are confident of the reliability of your sources when carrying out vetting - can you count on this information being true?
• Employers should also remember that individuals have a right to obtain copies of any personal information held about them, whether in employment references (although there is a limited exception to this) or on databases such as these. Bear this in mind when providing any information, and always ensure that you would be comfortable providing the information directly to the individual as well.

In relation to the new service from the AABC, retailers considering using the service should consider carefully when it would be appropriate to do so. The AABC announced that it has worked with the Information Commissioner's Office on this product; however, it will still be up to each individual employer to ensure that it is happy that sharing information about ex-employees with the wider group and using information obtained through the service meets its obligations under the Data Protection Act and otherwise.

While finding out all there is to know about your prospective employees is an attractive prospect, in the UK (and throughout Europe) there is a limit as to how far a responsible employer should go when investigating the prior working life or personal life of individuals.