Since the pandemic, the world has become much smaller as people quickly learned how easy it was to connect across physical and geographical barriers. That’s been especially true in work settings where hybrid and remote work have become commonplace. As employers in the United States (US) and their HR staff members seek candidates they may now find themselves fielding applicants from other countries, especially English-speaking areas like the UK.
Here we look at these differences and point out some key considerations when conducting background checks in the UK.
Legal Framework
There are a number of federal, state, and local laws that can apply to background checks in the United States, with the federal Fair Credit Reporting Act (FCRA) being the predominant law that applies to background checks conducted by consumer reporting agencies (CRA). This law promotes accuracy, fairness and privacy of information in the files of CRAs.
While the United Kingdom does not have a general overarching law that regulates employment background checks, there are several laws which must be considered. For instance, the Data Protection Act 2018, the Rehabilitation of Offenders Act, the Immigration, Asylum and Nationality Act 2006, and the Equality Act 2010 would be key to establishing the types of information that can or should be requested. (Please note certain other laws or regulations may apply particularly in respect to regulated industries).
Data Protection Law
When considering the impact of data protection law in the UK on background checks, employers should not request excessive or irrelevant information, and only seek to verify what is required to determine an individual’s suitability to performing the responsibilities of the role for which they are being considered. The Information Commissioners Office website (UK Data Protection Authority) provides an example stating it would not be permissible for employers to carry out credit checks of candidates and should reserve such checks for when they are relevant to the role being recruited for.
Lawful Basis for Processing
The FCRA mandates that employers provide a standalone disclosure and obtain written consent when procuring a background check from a CRA to a candidate or employee in the United States.
In the UK employers should have an appropriate lawful basis for processing any information gathered as part of the background screening process. Relevant lawful basis for employment background checks might include instances where the processing is necessary for compliance with a legal obligation to which the employer is subject, or that the employer has a legitimate interest in processing certain information, or the individual has provided their consent for the processing.
Information to Candidates
In the United States there are several specific forms, and disclosures that must be presented to a candidate prior to any background checks being conducted including, but not limited to, A Summary of Your Rights Under the Fair Credit Reporting Act.
While there isn’t always the same prescribed wording in the UK, an employer is responsible for informing individuals about what information is being processed and why, how their data will be processed (including with whom it will be shared with), and what their rights are in respect to that information. Further information can be found on the Information Commissioners Office website (UK Data Protection Authority).
Other Important Laws
In some instances, there are legal drivers for performing certain checks. The Immigration, Asylum and Nationality Act 2006 requires that employers in the UK only hire those with the right to work there. This places a responsibility on employers to ensure that all of their employees have the necessary right to work status before they begin work. Where employers fail to make the necessary checks and hire someone without the correct eligibility to work this can result in legal action and significant fines.
The Rehabilitation of Offenders Act 1974 prevents employers in the UK from asking individuals about their spent convictions. One of the purposes of this legislation is to allow those with criminal records to not be prevented from obtaining employment because of historic criminal records. However certain professions are exempt from this provision due to the nature and the responsibilities of the role such as where the individual will be working with children or vulnerable people, in such circ*mstances an employer is required to ask for this information.
The Equality Act 2010 prevents employers in the UK from discriminating against individuals on account of protected characteristics such as their: age, gender reassignment, being married or in a civil partnership, being pregnant or on maternity leave, disability, race including colour, nationality, ethnic or national origin, religion or belief, sex, or sexual orientation. It is therefore advisable that such characteristics do not form a basis as to why an individual is not offered a role.
Conclusions
Conducting background checks in the UK requires employers to understand the unique laws and regulations that impact what they can and cannot seek information on. Laws change frequently so it’s important to stay up to date on these requirements. A company like Accurate can help assist you in remaining compliant with local data and privacy regulations and obtaining the information you need to make informed hiring decisions.
Yoh Staffing Services, for instance, has more than 75 locations in North America and the UK, partnered with Accurate in 2016 to provide global background screening services.
The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. Accurate Background is not a law firm and does not offer legal advice. The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circ*mstances or to provide legal advice. Accurate Background makes no assurances regarding the accuracy, completeness, currency, or utility of the following information. [Regulatory developments and impacts are continuing to evolve in this area.]
