Law guide: Workplace

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References and checks

References and checks

When you start a new job, your employer will likely want to carry out a number of checks to see if you're suitable. This might happen before or after you're offered the job. Either way, you have certain rights during this process.

References

Employers will usually want to see at least one reference, including one from your previous employer.

Does your employer have to give you a reference?

It's good practice for your employer to give one, but they don't have to if your contract doesn't say they have to, except in some regulated industries like financial services.

Note that, for data protection reasons, they might ask you to give your consent in writing before they are able to supply a reference.

What information will be in the reference?

References must be accurate and shouldn't be misleading. This means that if, for example, you were disciplined when you worked for the employer who's giving you a reference, this may form part of the reference. However, unless you agree, information like your medical record or any spent criminal convictions shouldn't normally be included.

The author of the reference owes you a 'duty of care'. This means that if the reference isn't accurate or is deliberately misleading, it may amount to defamation and you could potentially take legal action. You will need to speak to a lawyer about how to do this. If you're still employed by the employer who has given this reference, it may amount to constructive dismissal.

An employer may choose to give a reference that just confirms your dates of employment. There is nothing unlawful in this, unless your employer normally gives full references and is discriminating against you.

If your employer refuses to give you a reference

If you complained about discriminatory behaviour by your employer, and they won't give you a reference as a result, you may be able to claim for continued discrimination (victimisation).

If you need a reference while you're still employed

If you feel that a prospective employer asking your current employer for a reference would cause a problem, say so. Your prospective employer may be prepared to wait until you've told your current employer that you're leaving. You have no special protection under the law, but if you're dismissed because your employer is asked to provide a reference, this could amount to unfair dismissal.

Asking to see the reference

Normally, the employer providing the reference doesn't have an obligation to show it to you. However, if you make a 'subject access request', they may have to show it to you under data protection law. However, they may not if they marked it as 'confidential'. See our section on Data protection for more information.

Once you start working for a new employer, you can ask them for a copy of any reference they've been given from your previous employers.

Proof of your entitlement to work in the UK

It is a criminal offence for an employer to knowingly employ a person aged 16 or over who does not have permission to live and work in the UK.

For this reason, it's likely they will want to carry out a check. They should do this for all potential staff, and not make assumptions about who they need to check – otherwise, their actions might be discriminatory.

Proving your entitlement online

The easiest way for the employer to check your right to work is view it online via a government service. They can do this without needing to see any of your documents. However, this service is only available if you have one or more of the following:

  • a biometric residence permit
  • a biometric residence card
  • status issued under the EU Settlement Scheme
  • status issued under the points-based immigration system
  • a British National Overseas (BNO) visa
  • a Frontier workers permit.

If you do, the employer can use this service if you give them a 'right to work share code', which you can get by using the government's prove your right to work service.

Note that the employer can't demand that you give them a share code. You have the right to ask the employer to check your documents manually instead. They can't treat you any differently as a result.

Proving your entitlement with documents

If you can't or don't want to use the online checking service, you'll need to show the employer at least one document that demonstrates your right to work in the UK. Suitable documents are set out in 2 lists provided by the Home Office, known as 'List A' and 'List B', published in their Right to work checklist.

There is a Code of practice that employers should follow during this process, although they don't have to.

The employer will need to make copies of the documents you show them. They will need to keep these (securely) until 2 years after you stop working for them. At that point, they must securely destroy them.

Further information

See the following Home Office guides for more on the process:

Health checks

You may have to have a health check if it's a legal requirement of the job (for example, having an eye test for a job as a driver).

Your employer may ask for a medical report, but if they want one, they must have policies for keeping it secure.

If you're disabled, your disability shouldn't be used as a reason for singling you out for a health test without good reason. If you are, and you don't get the job as a result, you can complain to an Employment Tribunal (or Industrial Tribunal in Northern Ireland). It's unlawful to treat disabled people less favourably because of their disability.

This doesn't mean that it will always be unlawful for an employer to ask a disabled person to have a health check, even if other candidates are not asked. It will depend on the nature of your disability and the needs of the job.

In England, Wales and Scotland, the Equality Act 2010 outlaws asking questions relating to health or disability and the use of health questionnaires before a job offer is made, unless doing so in order to:

  • Determine whether any reasonable adjustments need to be made for an applicant during a recruitment process
  • Determine whether an applicant can undertake a function that is vital ('intrinsic') to the job, such as enquiring about any mobility issues where the job entails handling heavy goods
  • Monitor diversity amongst the applicants, such as enquiring whether an applicant is disabled in order to establish whether advertisements are reaching disabled people
  • Take positive action to assist disabled people
  • Establish that the applicant has a disability where having a disability is an occupational requirement of the job

The Equality Act permits employers to make any offer of employment conditional on receiving a satisfactory medical report/health questionnaire. Questions asking the applicant to disclose details of past health may not be acceptable under the Equality Act.

Background checks

Where a job is security-related, an employer may want to carry out background checks. For a few financial services roles, these may also cover your credit history. The employer should treat all job applicants in the same way during the recruitment process.

Checking qualifications

If you need particular qualifications, training or licences for a job, your employer may ask for proof that you have them. They should let you know if they're carrying out these checks and if they intend to keep copies of any relevant documents on file.

Criminal record checks

It's possible that the employer could ask you if you have a criminal record. For some types of job, they will be legally required to check this.

Rehabilitation periods

Certain convictions are considered spent (forgotten) once a period of time passes. This is known as the 'rehabilitation period'. Once a conviction is spent, you don't have to disclose it and an employer can't refuse to employ you because of it (though there are exceptions – see below). The length of the rehabilitation period depends on the type and length of sentence, as well as the age of the offender at the time of their conviction. The more severe the penalty, the longer the rehabilitation period.

The rehabilitation periods differ slightly depending on where in the UK you live. For example, if you live in England, but committed an offence in Scotland, then the rehabilitation period for England will apply.

In Scotland and Northern Ireland, the rehabilitation periods start from the date of conviction. In England and Wales, the periods are based on the length of the sentence plus an additional specified period.

For more information on the rehabilitation periods for each country, see:

Exceptions

Certain jobs require you to reveal certain types of spent convictions or spent cautions. A caution includes conditional cautions, reprimands or final warnings.

The list of jobs where this applies broadly covers:

  • doctors, dentists, opticians, nurses and midwives, solicitors, pharmacists, taxi drivers, vets, traffic wardens and teachers;
  • work in the health service where there is access to patients;
  • work in social services where there is access to people with disabilities, the young, the elderly, the sick or other vulnerable adults;
  • work where there is access to people under the age of 18;
  • work involving the administration of justice, e.g. court officials, the police, probation officers, prison staff;
  • any occupation concerned with the management of a private hospital or nursing home;
  • certain occupations where national security may be at risk such as working for the Civil Aviation Authority; and
  • in England and Wales only: where an applicant is applying for a job that involves contact with children or vulnerable adults and this job is a 'regulated activity'. See the DBS eligibility guidance for more information, including a full definition of this term.

However, even for these jobs, there are circumstances where you don't need to reveal a spent conviction/caution:

England & Wales

If applying for one of these types of jobs, you must reveal all spent convictions/cautions, except in the following circumstances:

  • The conviction was for a non-specified offence (see below) 11 or more years ago, it didn't result in a prison sentence (including suspended sentences), and you were aged 18 or over at the time.
  • You were cautioned for a non-specified offence 6 or more years ago, and aged 18 or over at the time.
  • The conviction was for a non-specified offence 5-and-a-half years ago or more, it didn't result in a prison sentence (including suspended sentences), and you were under 18 at the time.
  • You were given a caution, reprimand or a warning and were under 18 at the time.

A specified offence is a list of offences that will always be disclosed (i.e. never be filtered) in a Standard or Enhanced Disclosure and Barring Service certificate. The list covers serious crimes, such as those related to violent or sexual offences or offences against children or elderly people. A non-specified offence is one that is not on this list.

Northern Ireland

If applying for one of these types of jobs, you must reveal all spent convictions/cautions, except in the following circumstances:

  • The conviction was for a non-specified offence (see below), 11 or more years ago, it didn't result in a prison sentence (including suspended sentences), and you were aged 18 or over at the time.
  • You were cautioned for a non-specified offence 6 or more years ago, and aged 18 or over at the time.
  • The conviction was for a non-specified offence 5-and-a-half years ago or more, it didn't result in a prison sentence (including suspended sentences), and you were under 18 at the time.
  • You were given a caution (including restorative cautions) for a non-specified offence, or agreed to diversionary youth conferences 2 or more years ago, and were under 18 at the time.
  • You received an informed warning (at any age) for a non-specified offence, one or more years ago.

A specified offence is a list of offences that will always be disclosed (i.e. never be filtered) in a Standard or Enhanced DBS certificate. The list covers serious crimes, such as those related to violent or sexual offences or offences against children or elderly people. A non-specified offence is one that is not on this list.

Scotland

If applying for one of these types of jobs, you don't need to disclose a spent conviction if either one of the following statements is true:

1. The spent conviction is not in either the list of offences that must always be disclosed or list of offences that must be disclosed according to rules.

2. The offence does appear in the list of offences that must be disclosed according to rules but it is a protected conviction. This means that you:

  • were convicted over 15 years ago and 18 or over at the time; or
  • were convicted over 7-and-a-half years ago and under 18 at the time; or
  • received a sentence of absolute discharge from a court, or discharge from a children's hearing.

Checking criminal records

If you're applying for the type of job listed above, the employer will need to carry out an official criminal record check. They should not do this without your knowledge. Where there are fees involved, they can ask you to pay them.

The checking system varies slightly between England and Wales, Scotland and Northern Ireland.

Types of checks available

There are 4 different types of check:

  • Basic check: This is a check that you can request yourself (the others have to be requested by the employer). These only contain convictions that aren't spent.
  • Standard disclosure: This will contain details of your criminal convictions including any relevant spent convictions, cautions, reprimands and warnings.
  • Enhanced disclosure: This will include the same details as a standard disclosure, plus any extra information held by the local police force that they reasonably consider to be relevant and appropriate to the job.
  • Enhanced with list checks: This includes all the information contained in the enhanced disclosure, but with extra checks being made against a list of individuals who are barred from working with children or vulnerable adults.

England & Wales

Criminal record checks for England and Wales are undertaken by the Disclosure and Barring Service or 'DBS'.

Scotland

In Scotland criminal record checks need to be carried out through Disclosure Scotland.

Northern Ireland

In Northern Ireland criminal record checks need to be carried out through Access NI.

Withdrawing a job offer

An employer can withdraw a job offer even after you've accepted it if any check on you has produced unsatisfactory results, so long as you were made aware before you accepted the job that the offer was conditional on the checks.

Where to get help

For England, Wales and Scotland the Advisory, Conciliation and Arbitration Service (Acas) offers free, confidential and impartial advice on all employment rights issues.

For Northern Ireland, the Labour Relations Agency (LRA) offers free, confidential and impartial advice on all employment rights issues.

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