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's a criminal offence for an employer to employ a person aged 16 or over who doesn't have permission to work in the UK. Employers (or managers they employ) are liable to pay a civil penalty of up to £60,000 per illegal worker.

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. The Home Office have produced a Code of practice that they should follow.

Giving proof of your right to work

To prove your right to work in the UK, you'll need to have one or more of the documents from categories known as List A and List B. These are set out in the government guidance Right to work checks: an employer's guide.

Documents from List A mean that you have a continuous right to work in the UK. Documents from List B mean you have a time-limited right to work in the UK (usually either until your immigration permission ends or up to a limit of 6 months) and your employer will have to do a follow-up check.

The way your employer checks if you have a right to work depends on your citizenship. If your employer is unable to perform the initial or follow-up checks using these methods, they must use the Home Office Employer Checking Service.

British or Irish citizens

They can check your right to work in the UK manually or by using a certified identity service provider (IDSP).

Manual checks require you to be physically present (usually at the employer's workplace) and to show them an original document from either List A of List B. In most cases this will be your passport. The employer will check to see if it belongs to you and that it appears to be genuine.

An IDSP provider will use identity document validation technology to get evidence of your identity. It can be used if you have a valid passport (including Irish passport cards).

The employer must not treat you less favourably if you do not hold a valid passport, or you don't want to prove your identity using an IDSP. They must perform a manual check instead.

Citizens of other countries

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.

To use the service, you need to get a right to work share code. This is available from either the government's Prove your right to work or View and prove your immigration status services.

A share code isn't available to everyone - generally only those with a biometric residence permit/card or passport containing an eVisa can get one.

If you have refused to provide a share code or cannot get one, they must perform the check manually, and you must show them at least one document that demonstrates your right to work in the UK from List A or List B.

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

Keeping copies of documents

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

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

A criminal record includes convictions and cautions. A caution includes conditional cautions, reprimands and final warnings.

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 themselves. These usually involve contact with children or vulnerable adults or require a professional qualification.

Spent convictions and rehabilitation periods

A spent conviction is a criminal conviction that's considered to be forgotten after a period of time passes, known as the rehabilitation period. The length of a rehabilitation period depends on the type of crime, length of sentence, and the offender's age when they were convicted.

More severe crimes with longer sentences will usually have longer rehabilitation periods, therefore taking more time before a conviction is spent (or forgotten).

The length of a rehabilitation period differs slightly for each country.

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

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

GOV.UK (England and Wales)
Gov.scot (Scotland)
nidirect (Northern Ireland)

Note: The rehabilitation periods that apply depend on where you live. For example, if you live in England, but the offence is committed in Scotland, the rehabilitation period for England will apply.

If you have a spent conviction, you must be treated as a person who has not committed (or been convicted of, or charged with) a criminal offence, i.e. as if you have a clean criminal record.

This means that any spent convictions you have should not be disclosed to, or requested by, your employer unless you're applying to work in certain 'excepted' roles or occupations.

Spent convictions and excepted roles and occupations

If you're applying for roles that involve some contact with children or vulnerable adults or that require a professional qualification, you must disclose certain spent (forgotten) and unspent criminal convictions. These are known as excepted roles or occupations and require nearly all criminal convictions and cautions to be disclosed (it's not necessary to disclose some old and minor convictions or convictions when you were under 18).

The list of excepted roles or occupations broadly covers:

Working with a professional qualification, e.g. doctors, dentists, opticians, nurses and midwives, solicitors, pharmacists, teachers and vets.
Working in the health service or social services where there is access to patients, people with disabilities, the young, the elderly, the sick or other vulnerable adults (including management of a private hospital or nursing home).
Working in occupations involving the administration of justice, e.g. court officials, the police, probation officers, prison staff.
Working in a role that involves contact with children (under 18) or vulnerable adults. In England, Wales and Northern Ireland these called roles in a 'regulated activity'. In Scotland, they are known as a 'regulated roles' and usually require membership of the PVG scheme.

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

Removing old and minor convictions and cautions from criminal record checks

When applying for an excepted role or occupation, you must usually reveal all spent convictions, but some old or minor ones will usually be removed from a criminal record check. The rules about this vary between each country.

England & Wales

The following old or minor convictions and cautions will usually be removed from the results of a Standard or Enhanced criminal record check, as they are protected from being disclosed:

A conviction for a non-specified offence that didn't result in a prison (or suspended) sentence, received 11 or more years ago when you were an adult (18 or over).
A caution for a non-specified offence, received 6 or more years ago when you were an adult.
A conviction for a non-specified offence that didn't result in a prison (or suspended) sentence, received 5-and-a-half years ago or more, when you were under 18.
Any caution, reprimand or a warning received when you were under 18.

A specified offence is a list of offences that will always be disclosed (i.e. never removed from a Standard or Enhanced criminal records check). The list of specified offences covers serious crimes, such as those of a violent or sexual nature or offences against children or elderly people. A non-specified offence is one that is not on this list.

Enhanced criminal record checks can include a protected conviction or caution if the police consider that it's relevant. For more information see the rules about which convictions and cautions can be removed from a criminal records check.

Northern Ireland

The following old or minor convictions and cautions will usually be removed from the results of a Standard or Enhanced criminal record check, as they are filtered (removed) from being disclosed:

A conviction for a non-specified offence that didn't result in a prison (or suspended) sentence, received over 11 years ago when you were an adult (18 or over).
A caution for a non-specified offence received over 6 years ago, when you were an adult.
A conviction for a non-specified offence that didn't result in a prison (or suspended) sentence, received over 5-and-a-half years ago, when you were under 18.
A caution (including restorative cautions) for a non-specified offence, or a diversionary youth conference received over 2 years ago, when you were under 18.
An informed warning (at any age) for a non-specified offence, received over one year ago.

See the nidirect website for more information.

Scotland

The following old or minor convictions may be removed from the results of a Level 2, Level 2 with barred list check and PVG scheme check, as they are protected from being disclosed:

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

2. A spent conviction that's in the list of offences that must be disclosed according to rules, but either:

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

See the mygov.scot website for more information.

Checking criminal records

If you're applying for a role that involves some contact with children or vulnerable adults or requires a professional qualification, your employer must apply to an official government scheme to carry out a criminal record check.

They should not do this without your knowledge. Where there are fees to pay, they may ask you to pay them.

The methods of obtaining a criminal record check and the type of information available vary slightly between England and Wales, Scotland and Northern Ireland.

England & Wales

Criminal record checks for England and Wales are undertaken by the Disclosure and Barring Service or DBS. The following types of criminal record checks can done:

Basic check: This is the only check that can be requested by you or your employer. It only contains details of any unspent convictions.
Standard disclosure: This will contain unspent convictions and cautions and certain spent convictions, but will usually exclude some old and minor convictions. It should be obtained for occupations and roles that are exempt and which do not involve contact with children or vulnerable adults (generally those requiring a professional qualification).
Enhanced disclosure: This will contain unspent convictions and cautions and certain spent convictions (excluding some old and minor convictions) and will include any additional information held by the local police force that they reasonably consider to be relevant and appropriate to the role.
Enhanced check with barred lists: This shows the same information as an enhanced disclosure check and whether you're on the list of people barred from working with children or vulnerable adults.

You can check if the role you're applying for needs a criminal record check on the GOV.UK website.

Scotland

In Scotland, criminal record checks need to be carried out through Disclosure Scotland. The following types of criminal record checks can done:

Level 1 disclosure (previously called a basic check): This is the only check that can be requested by you or your employer. It only contains details of any unspent convictions.
Level 2 disclosure (previously called a standard disclosure): This will contain unspent convictions and cautions and certain spent convictions, but will usually exclude some old and minor convictions. It should be obtained for occupations and roles that are exempt and which do not involve contact with children or vulnerable adults (generally those requiring a professional qualification).
Level 2 disclosure with barred list check (previously called an enhanced disclosure): This will contain unspent convictions and cautions and certain spent convictions (excluding some old and minor convictions) and include if you're on (or under consideration to be placed on) the barred lists for working with children or adults. It's only used for specific activities, such as adopting a child.
Disclosures under the Protecting Vulnerable Groups (PVG) scheme: The PVG scheme is a membership scheme that people working with children or protected adults in regulated roles must join. Employers are usually required to start the application process. You can check if a role needs a PVG membership using the mygov.scot online service.