ATL

Checks and references

Before you can start a new job, your prospective employer has to run a wide range of checks on you. ATL solicitor Kehinde Adeogun explains

Increasingly, the relationship between a new employer and employee is governed by legislation from fields as wide apart as immigration and health. This article looks briefly at the way in which legislation impacts on the start of an employment relationship in education.

After an individual has successfully negotiated the application, shortlisting and interview process, an employer will make an offer that is subject to pre-appointment checks. The checks include verifying immigration status, identity, fitness to carry out the duties of the job, a reference confirming suitability and Criminal Records Bureau (CRB) checks.

Every employer is obliged under the Immigration, Asylum and Nationality Act 2006 to check original documents that confirm an individual's eligibility to work unrestricted in the United Kingdom. Those original documents could include a passport that confirms British citizenship, a Home Office or Border Agency document that certifies an individual's permanent residence or right to stay in the UK indefinitely, or that the holder is exempt from immigration control.

As a prospective employee, you will be asked by a new employer to provide original documents. Employers must retain copies of the original documents because a failure to check an individual's status can lead to fines of up to £10,000. For those employers who knowingly employ an individual who does not have a right to work in the UK, the penalty is an unlimited fine and/or a maximum of two years' imprisonment.

To verify an individual's identity, prospective employers must have sight of the individual employee's qualifications, driving licence and proof of their address. Sight of these documents must be requested by an employer in order to comply with the Department for Children, Schools and Families' safeguarding provisions.

In addition, a prospective employer may also seek to verify that an individual is medically fit to undertake the work for which they have been recruited. An individual may therefore have to complete an occupational health referral form or a pre-employment medical questionnaire. An individual's answer may give rise to an obligation on a prospective employer to make reasonable adjustments to enable that individual to carry out the job. All prospective employees must be aware that providing responses that could mislead an employer over their health record could affect their continued employment.

If you have any queries about how to answer any pre-employment medical questions or the impact they may have on the job offer, please contact ATL.

Job offers are made subject to satisfactory references. However, a former employer who has been asked to provide a reference is under no legal obligation to do so. If a reference is provided, that reference must truthfully reflect the history of the individual's employment. You will not be entitled to a copy of that reference from the person who provides it. However, under the Data Protection Act, you will be entitled to request a copy of the reference held on your personnel file by the recipient.

In addition to all the checks mentioned previously, all new employees must have a new CRB check. The cost of the check is £36 and most employers in the maintained sector will pay for that. However, those employees who work in the independent sector, for supply agencies or in FE, may be personally liable for the cost of the CRB check.

The content of the CRB enhanced disclosure form can sometimes result in an offer of employment being withdrawn. The Chief Constable of each police authority exercises their discretion to decide what information to include in the CRB enhanced disclosure box. It is very difficult to challenge the contents of an enhanced CRB disclosure form, unless the information is factually incorrect.

From July 2010, all new employees will have to register with the Independent Safeguarding Authority (ISA) so that they are registered as individuals who are not likely to cause harm to children and/or vulnerable adults. From November 2010 it will be a criminal offence for employers to offer employment to individuals who do not have an ISA registration.

ISA registration costs £64 in England and Wales, and £58 in Northern Ireland. Scotland has yet to introduce a scheme. Individuals are personally responsible for paying the fee. ATL's position is that the employer should pay the fee.

More information is available in the ATL ISA factsheet. ATL is able to offer assistance to individuals who have queries about pre-appointment checks.