Member Article

It’s 2023 and in the first of our HR Improve articles for this year we focus on three key areas for employers to consider when bringing new talent into their business. 

Permission to work in the United Kingdom 

Making sure that any new starter has the right to work in the UK is essential and this should be checked prior to the first day of employment to make sure that they can start as planned. Between 1 April 2022 and 30 June 2022, the UK government issued just shy of £550,000 worth of fixed penalty notices to London businesses for non-compliance in respect of right to work checks. Under the Immigration, Asylum & Nationality Act 2006, every single worker must evidence their right to work in the UK prior to their employment commencing. As such, employers shouldn’t assume by the way an individual looks, spells their name, or talks that they are British and have permission to work. There is a different process to follow depending on the individual’s nationality.

For British & Irish nationals, employers should conduct a manual right to work check in accordance with the Home Office guidance – Right to work checks: an employer's guide - GOV.UK (www.gov.uk). This sets out a four staged process for compliance – obtain a document from List A, check that the document is genuine, copy the documents so that all important information is clearly visible and retain copies for the duration of the employment plus an additional two-years.

Since October 2022 it has been possible for employers to outsource the right to work checks for British & Irish nationals by instructing an Identity Service Provider (commonly referred to as an IDSP) to complete the check for them. Whilst this may ease the administrative burden on employers, liability does not automatically shift to the IDSP if a check is completed incorrectly. Employers will still be liable for any illegal workers in their ranks where an IDSP check has failed.

For non-British & Irish nationals, employers should obtain a share code from the individual and input this into the Employer Checking Service online. This will instantly show whether they have permission to work in the UK and will also outline any restrictions on employment that their visa may command (e.g., students are only permitted to work for 20 hours per week during term time). A copy of this confirmation page should then be downloaded and retained, again for the duration of the individual employment plus a further 2 years.

From April 2022, this is the only way that non-British & Irish nationals can demonstrate their right to work in the UK. It is not possible for employers to obtain a statutory excuse against a sanction if they have attempted to prove immigration status in another way such as taking a copy of their BRP or visa documents.

Provided that employers have completed right to work checks compliantly they will obtain a statutory excuse against sanctions if it transpires that an individual did not, in fact, have the required permission to work in the UK. 

Background checks

Another common area when bringing in a new starter is what background checks to carry out on them.

Employers are entitled to carry out criminal record checks via the DBS where the occupation is identified within the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Exception Orders). This includes professions such as medical practitioners, solicitors, veterinary surgeons, registered teachers, and chemists. If the new starter is in one of these fields an Enhanced DBS check can be a lawful condition of employment and will show both spent and unspent convictions, cautions, reprimands, and warnings held on the Police National Computer unfiltered as well as any information held on the barred lists.

If a role is not listed on the Exception Orders, employers can still request a Basic or Standard DBS check but mustn’t refuse to employ somebody based on the result alone. It should be noted that even if an individual has received a custodial sentence the DBS check won’t show this if the conviction is deemed as having been spent (e.g., a custodial sentence of up to 6 months is deemed to have been spent after 2-years).

Most employers will want to see references for an individual before they start employment. If this is a condition of a job offer being made it should be clear throughout the onboarding process that any offer of employment is subject to the receipt of satisfactory references. In the absence of this being expressly stated employers may find themselves in breach of contract if they rescind an offer either because a poor reference has been received or no reference at all has been provided. In such circumstances, employers might have to make a payment in lieu of the contractual notice period even where the individual hasn’t completed any work for them.

Even where a reference is provided, employers should be careful not to place undue weight to any opinion or information expressed within it. For example, a reference disclosing that an individual had a period of long-term sickness absence might cause an employer concern. Yet withdrawing the offer of employment on this basis could give rise to a disability discrimination claim. In reverse, an employer may be concerned at a factual reference being provided. An employer should instead seek to rely on their probationary periods and performance management processes to ensure that the individual is the right fit for the role.

Induction

Setting the right tone at the start of the employment relationship is vital to its success and to avoid potential issues down the line.

If there is a probationary period, an employer should explain how and when the individual's performance will be assessed and how their continued employment will be confirmed if they are successful. It is also important to explain that probation may be extended in certain circumstances.

During the induction process, it is a good idea to set performance objectives and organise any relevant training to ensure that the individual understands their role, what is expected of them and who they report to. They should be given full details of the employer's policies and procedures and it is always advisable to ask the individual to confirm that they have read and understood these. Finally, clarifying that the individual can use any technology associated with their role effectively and offering any other support or training will help to make the onboarding process as smooth as possible.

 

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