Briefing: Should employers consider an employee’s private life when assessing their suitability for a role?
Last month, the Director General of the Independent Office for Police Conduct (IOPC) said that recruiting must become “more intrusive and diligent” in order to prevent “baddies” from being hired. Michael Lockwood’s comments were made directly in relation to the Police force, and how those applying for a Police Officer role should be subjected to vigorous background checks - with private matters such as extra-marital affairs they consider as “dangerous red flags” of their character, and subsequent unsuitability for the job. As a result of advances in technology, employers are now able to undertake a far wider range of background checks on potential new employees than ever before. But is that fair or the right thing to do? Is it appropriate for employers to consider events that occur in someone’s private life to assess their capability for a job role? This briefing looks at the issues.
Lawful background checks
In the context of employment, a background check is an action taken by an employer to verify a potential (or existing) employee’s characteristics, and their bearing on the individual’s suitability for employment. All employers can carry out a wide range of background checks and they extend to include criminal records, previous employment, identity, education verification, motor vehicle records, credit history, social media and fingerprints.
However, in carrying out checks, it’s important employers keep in mind that there are nine ‘protected characteristics’ under the Equality Act 2010, which are not legally permitted to be taken into account during the recruitment process; otherwise, the employer would face claims of discrimination, victimisation or harassment. These protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sex or sexual orientation. Therefore, employers must ensure their decision to carry out checks and the checks they carry out do not result in direct or indirect discrimination.
Background checks are legal and employers have the right to know who they are hiring. Anything that might arise in a background check – be it a criminal conviction or traffic violation – is technically on public record. Most employers now exercise their right to carry out background checks: a survey showed that 72% of employers conduct background checks on every new employee.
With that said, an employer’s right to conduct background checks is not absolute or unlimited. There are laws and regulations that limit how employers run background checks and how they use this information in their decision-making.
Rescreening and continuous employee background checks
Beyond background checks in recruitment, now employers are showing interest in continuous, real-time employee screening. Enabled by advances in technology that allow for easier monitoring, surveillance and tracking, these ongoing background checks are possible primarily because the Police and Court systems have moved to online records systems. Combined with new data modelling techniques, cloud computing and automation, scanning the internet and analysing large data sets to locate information on employees is now within reach of even the smallest of organisations.
Most companies screen for red flags in their employees’ work, legal or financial histories, usually before they come on board. However, these checks are only accurate up to the point they are conducted. If an employee commits a crime, has a licence revoked or loses work authorisation after being hired, it’s possible that the employer may never find out. While you can make it a contractual requirement to disclose any criminal offences, the employee may not voluntarily disclose this to you.
Uber is one of the most high-profile companies to go public with its plans to conduct continuous background checks on its employees. The company has, to some extent, been pushed to carry out better screening on its drivers following allegations of misconduct and its checks will now include updated drivers records, licence suspensions and any new criminal violations. Harnessing its software expertise, Uber’s new technology will alert the company when – for example – a driver is charged with driving under the influence. Since launching its new screening process, Uber has removed over two dozen drivers.
So, whilst only 11% of companies consistently re-screen current employees, job candidates should be prepared for more stringent screening policies in the near future – including re-screens and ongoing social media checks.
The moral dilemma
Whilst background checks make sense from an employment law perspective, for many people they feel the checks are, at best, irrelevant to the role, and at worst, a complete invasion of privacy. With the challenges employers face in recruiting and retaining staff, it’s important to consider the full implications of using these checks.
If we take the Police’s proposals as an example, there are a number of considerations and morally blurred lines around this. Who would be vetting the process and does this only apply to married couples? Does this infringe on an officer’s right to a private life, which is a human right? This can be directly enforced given the status of the Police. What happens if an officer begins a new relationship after their spouse has left them, but before they are divorced, therefore committing adultery? Human relationships are complex and a blanket approach doesn’t necessarily always work.
In the context of policing, it makes sense that more stringent and tougher measures may be needed to evaluate employees – particularly given the current climate in which many people are finding it harder to trust Police Officers. There are also other factors, such as finances or relationships with criminals, which are essentially checked as a potential risk in terms of an officer becoming compromised or blackmailed. So perhaps the idea of an ‘infidelity’ measure is not all that different in this sense, and in this light, the Police Force – and the comments made by Mr Lockwood – stands as somewhat distinct from other industries and employers. Ultimately, there is no set framework and employers will have a responsibility to make their own decisions on how detailed they want to be with their background checks.
Summary
So, should employers consider an employee’s private life when assessing their suitability for a role? In summary, for some sectors it could be justified – but for many employers it won’t be.
Whilst perhaps morally ambiguous in respect of certain roles, the law supports employers to conduct appropriate background checks in assessing a potential or existing employee’s suitability for a role. Given the rising turnover of staff, carrying out checks remains a good way to verify who you are recruiting, but it’s balancing it up against how the prospective employees may feel about the checks and re-screening and ensuring your communication with them addresses any concerns.
Pam Loch, Employment Solicitor and Managing Director of Loch Employment Law.
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