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Pre-employment screening: where should we draw the line?

19 Oct 09

Legislation in the area of pre-employment screening is something of a nightmare. Could the unsuspecting security manager be caught out? Chris Brogan offers his forthright views on the subject.

By Chris Brogan

There are a number of guidelines published with regard to pre-employment screening. BS 7858: 2006 – Security Screening of Individuals Employed in a Security Environment (Code of Practice) or the Centre for Protection of the National Infrastructure (CPNI) (or Mi5's) Good Practice Guide on Pre-Employment Screening (2nd Edition) to name but two.

I must say the CPNI’s publication is the best I've ever read, and I would strongly recommend it to any readers of SMT Online.

These guides rely a great deal on integrity checks, part of which are financial checks such as county Court judgements and bankruptcy and basic disclosure criminal record checks through Disclosure Scotland. The Use of Standard and Enhanced criminal record checks are dictated by statute, and are not referenced here.

Tongue in cheek, I've often asked security managers if, as part of their integrity checks, they ask the applicant whether or not they've ever cheated on their partner. Usually accompanied by a wry smile, the answer has always been a very firm: "No", followed by the suggestion that I cannot ask such things. It's none of my business, and it sn’t relevant.

I've asked employment lawyers the same question. As you might expect, the answers are the same save for beign a tad more wordy.

Honesty and integrity: the quality of being unimpaired

Let me just dwell on the relevance aspect for a while. Integrity (as defined by The New Collins Dictionary) is all about 'adherence to moral principles; honesty; the quality of being unimpaired' - exactly the sort of qualities we would want to see in an employee.

What about the potential employee who has cheated on their partner? They may be into their second or third Mortgage. They might have two or three children. Could it not be said that the integrity of the cheating half of the marriage is in question?

I don’t know the answer, but let’s just say it is. That being the case, surely it is a relevant question to ask? If the person has cheated on his/her partner what are the chances of them cheating on their employer?

I have been told we can’t ask a question of that nature but no-one will tell me why not. It is “none of the employer's business” but are there specific roles where it might be? The position of Vicar immediately springs to mind, and I assume there must be others.

Questions concerning financial probity

If - and I'm assuming that you agree - this type of question is out of bounds, why do we include as part of an integrity check questions on financial probity?

If you are going to employ me as a security officer, why are you asking me if I have county Court judgements or that I might be bankrupt?

Is the state of my finances any more business of yours than my marital circumstances? What relevance does a county Court judgement have in relation to my integrity or my ability to perform in the role?

Incidentally, the Security Industry Authority doesn’t conduct a financial probity check prior to issuing a licence. If I wanted to be a magistrate, they would only check to see if I was an undischarged bankrupt. If I was applying for a financial position with your company then my own financial circumstances would be relevant.

After all, if I cannot successfully manage my own financial affairs how successful am I going to be at managing yours?

Does any of this cast any doubt over my honesty, particularly in the current financial climate in which we find ourselves operating?

Is my criminal record any of your business? Just because you would like to know doesn’t mean that you are entitled to know. If I have a criminal record for drink driving and part of my duties will involve driving a company vehicle, I suggest you would have no problem in establishing relevance. That said, what if the job did not entail any driving duties?

The basic disclosure check

If the job I was applying for was one where there is no statutory basis for a criminal record check then all that is available is a basic disclosure check. This cannot be done without my permission. It involves me exercising my right to request a copy of the information held by CRB Scotland about me. It is called a subject access request: Section 7 Data Protection Act 1998.

I would be making this request at your instigation as part of an employment contract. That process is referred to as 'Enforced Subject Access Request'.

Section 56(1) of the Data Protection Act states: “A person must not, in connection with (a) the recruitment of another person as an employee (b) the continued employment of another person or (c) any contract for the provision of service to him by another person require that other person or a third party to supply him with a relevant record or to produce a relevant record to him.”

Paragraph 5 carries on in stating: “A person who contravenes subsection (1) or (2) is guilty of an offence.”

This part of the Data Protection Act 1998 doesn’t take effect until Part V of the Police Act 1997 takes full effect. They don’t know when that will be. It is now over six years late.

Safeguarding Vulnerable Group Act 2006

The sighs of relief I hear are, unfortunately, short lived. Last Monday the Safeguarding Vulnerable Groups Act 2006 came into effect. Section 27 of the legislation has almost identical wording to the section above.

So it would seem that if you make me provide a basic disclosure check you could be committing a criminal offence.

Let me leave you with three questions...

(1) I don’t tell you about my criminal record and my county Court judgements because I didn’t think it was your business and/or you had not explained your justification for requiring this information. A year later you found out. Can you fire me?

(2) If I do supply you with a basic disclosure check as a result of your possible criminal request, am I aiding and abetting you to commit a criminal offence?

(3) Could I be prosecuted under the Fraud Act 2006?