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South London CIPDEmployment Law Update - RecruitmentAndrew Knorpel, Partner and Abigail Maino, Solicitor

24 October 2012

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Safeguarding Vulnerable Groups

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How Did We Get Where We Are?

• Criminal Records Bureau (CRB) checks• Requirement for enhanced CRB checks• Three statutory barred lists• Bichard Inquiry following the Soham murders• Safeguarding Vulnerable Groups Act 2006 (SVGA)• Vetting and Barring Scheme (VBS) administered by

Independent Safeguarding Authority (ISA)• VBS put on hold in June 2010 and review carried out

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Where Are We Now?

• Protection of Freedoms Act 2012 (PFA)• Changes came into force on 10 Sep 12• ISA and CRB will merge on 1 Dec 12 to form Disclosure and

Barring Service (DBS)• Protected groups – children and vulnerable adults• Regulated activity• The duty to check whether an individual is barred• The duty to refer and provide information to the ISA

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Five Specified Types of Regulated Activity Relating to Children

• Types of activity –• Teaching, training or instruction• Care or supervision• Advice or guidance• Public electronic interactive communication service• Conveying children

• Automatically regulated if relate to relevant personal care or health care provided by (or under direction of) health care professional

• Otherwise must be carried out frequently by the same person or the “period condition” must satisfied

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Regulated Activity Where Work at Certain Establishments Relating to Children

• Regulated establishments include various educational institutions or childcare premises

• Carried out by person engaged in –• Paid or unpaid work unless under contract for provision of occasional

or temporary services which does not involved specified activity• Unpaid work, on a regular basis, supervised by someone undertaking

regulated activity• Carried out frequently by the same person or the “period condition” is

satisfied• Carried out for the purposes of the establishment• Person has opportunity to have contact with children

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Frequency of Carrying Out Regulated Activity

• Frequently means if, on a regular basis, carried out once a week or more often

• The “period condition” is satisfied if –• Carried out by a person at any time on more that three days in any

period of thirty days; or• In relation to first three of five specified types of regulated activity –

• Carried out by person at any time between 2am and 6am; and• Activity gives person opportunity to have face-to-face contact with

children

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Regulated Activity Relating to Vulnerable Adults

• Includes provision in any setting of –• Health care by health care professional• Relevant personal care in connection with prescribed

activities (including physical assistance, prompting, training etc)

• Assistance in relation to general household matters• Relevant assistance in conduct of adult’s own affairs• Conveying of adults who need to be conveyed in

prescribed circumstances

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Regulated Activity Providers (RAPs)

• RAPs must satisfy three conditions –• Must be responsible for management or control of regulated activity• If carried out for purposes of organisation, not subject to supervision

or direction of third party• Must make arrangements for a person to engage in activity

• RAPs likely to be employers or voluntary organisations• For instance, definition will include both –

• Public sector bodies who outsource regulated activity; and• Service providers carrying an outsourced contract

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Children’s and Adults’ Barred Lists

• Inclusion of individuals on lists by ISA –• Automatically without opportunity to make representations

(for certain offences)• Automatically with subsequent opportunity to make

representations• After the opportunity to make representations

• Appeals against barring to Administrative Appeals Chamber of Upper Tribunal

• Right of review after minimum periods of time

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New Checking System

• Duty to check barred lists when new system brought into force –• RAP must establish that individual not barred before permitting them

to engage in regulated activity• Personnel supplier must establish that individual not barred before

supplying to third party whom they know (or has reason to believe) will permit them to engage in regulated activity

• Sufficient to check relevant enhanced criminal record certificate within (as yet unknown) prescribed period

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New Checking System (cont)

• When new system brought into force, prescribed persons considering permitting an individual to engage in regulated activity will be able to –• Make application to find out if individual is barred, provided individual

consents to application and fee is paid• Register to receive barring information about an individual

• Once a person is registered –• They will be notified if the individual becomes barred• Registration is cancelled if either they or the individual requests

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Duty to Refer and Provide Information

• RAPs must provide “prescribed information” to ISA if RAP withdraws permission for an individual to engage (or would have done if individual had not ceased to engage) in regulated activity where individual –• Has committed an offence which means they should be included on

one of the barred lists• Has engaged in relevant conduct, such as that which would endanger

a child or vulnerable adult• Satisfies “harm test”, such as where individual may harm, attempt to

harm or incite another to harm a child or vulnerable adult

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Duty to Refer and Provide Information (cont)

• Prescribed information includes –• Specified personal details of the individual• Description of relevant regulated activity carried out• Copies of specified relevant documentation• Details of their current role or, if no longer employed, the

circumstances in which they ceased to be employed• Specified details about the individual’s conduct and any harm suffered• Details of any investigation carried out• Details of any disciplinary proceedings carried out• Details of any related court or tribunal proceedings

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Criminal Offences

• By a barred individual –• Engaging in, seeking to be engaged in or offering to be engaged in regulated

activity from which barred• By those permitting an individual to engage in regulated activity –

• Permitting individual to engage in regulated activity from which they know, or have reason to believe, the individual is barred

• By those applying for registration to receive barring information –• Making a false declaration about the need for the information or that the

individual has consented• By those who fail to refer or provide information to ISA –

• Failing to provide this information, without reasonable excuse

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The Right to Live and Work in the UK

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What employers need to know generally

All employers have a duty to prevent illegal working You need to check original documents and take copies before the individual starts work If the individual has time limits imposed on their length of stay and work in the UK – check once every 12 months You must check the original documents Applies to all workers who started working for you on or after 29 February 2008.

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What if employers get it wrong?

Employers can incur a fine of up to £10,000 for each illegal worker if you do not carry out the necessary checks

If you can demonstrate to UKBA that you carried out the necessary document checks, there is a legal excuse (called the “statutory excuse”)

You can rely upon the statutory excuse unless you know you are employing a person who is not allowed to work in the UK – this risks an unlimited fine and/or up to 2 years imprisonment even if you have carried out the document checks

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Checking documents correctly – the 3 step process

The guidance sets out two Lists (“A” and “B”) of the types of documents which can be used to verify someone’s eligibility to work in the UK.

Step 1:•  You must ask for and be given either:

one of the single documents or two of the documents in the specified combination given from List A; or

one of the single documents or two of the documents in the specified combinations given from List B.

• Whichever documents you are given, they must be originals.

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Checking documents correctly – the 3 step process

Step 2:• You must take all reasonable steps to ensure that the documents that

you have been given are genuine and satisfy yourself that the person names in the document is the person you are employing.

Step 3:• You must take copies of the relevant page(s) of the documents you

have seen in a format which cannot be altered (e.g a photocopy or scan).

Keep a list of the documents that you have taken copies of and that you hold for the duration of the individual’s employment plus an additional 2 years.

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TUPE – prevention of illegal working requirements

If you acquire employees through a TUPE transfer, you must carry out original document checks within 28 days of the date of the transfer.

If the transfer involves sponsored migrants, you have 28 days to notify UKBA of the change of sponsorship.

If the buyer is not already a sponsor, it has to apply to become one within 28 days of the transfer.

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Recruitment – The Legal Issues

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Discrimination in recruitment

An employer (A) must not:Discriminate against or victimise a person (B):• In the arrangements A makes for deciding to whom to offer

employment • As to the terms on which A offers B employment • By not offering B employment

In relation to employment by A, harass a person (B) who has applied to A for employment

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Data Protection Issues

Recruitment processes raise several questions about the operation of the DPA: How does the employer deal with the personal data it

receives from job applicants? How does the employer conduct equal opportunities

monitoring as part of a recruitment exercise? What does the employer do with the information it has

received at the end of a recruitment exercise?

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How to protect yourself

Create a paper trail• recruitment policies• job descriptions• selection criteria• notes of shortlisting process• interview questions• score sheets

Train participants in the interview process

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Recruitment – The Practical Issues

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Preparing the job description and person specification

Job descriptions• use appropriate job title• accurately describe the job• focus on outcomes• avoid specifying unnecessary working patterns

Person specifications• relevant criteria• relevant qualifications• objective

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Advertising the vacancy

Deciding between internal and external advertising• In some circumstances, internal only may be appropriate.• External advertising may produce more varied pool of candidates• Don’t forget those on long term sick leave or maternity leave

The means of advertising• Internet only?

The content of advertising• take care over the wording of the advertisement• managers should refer advertisements to HR to check

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Shortlisting and interviewing

Application form vs CV Equal opportunities monitoring Shortlisting• where possible, more than one person involved• agree the marking system before the applications are assessed

Interviews• Written/psychometric tests – nb reasonable adjustments• try to be flexible with arrangements for interviews• questions at interviews should be relevant

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Offering employment / withdrawing offer

Confirm offer in writing The offer should be conditional on • the signing of a full contract• satisfactory references• proof of any relevant qualifications• proof of right to work in the UK• any necessary background checks • medical checks (if necessary)

Withdrawing before and after acceptance by employee

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Probationary periods

Have probationary period in contract• shorter notice• no qualification for certain benefits/ enhancements

Have a contractual right to extend the probationary period Timing is everything!• Diarise the end of the probationary period

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References

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References Generally

• Personal and corporate references• Written and telephone references• No general legal obligation to provide a reference except where –

• Otherwise an act of discrimination or victimisation• FSA-regulated employment• In education sector• Contractual obligation, such as under compromise agreement

• General duty to ensure that any reference given –• Is true, fair and accurate• Does not give misleading impression through omission

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Liability When Reference Provided

• To subject of reference –• Discrimination and victimisation• Defamation (damage to reputation)• Malicious falsehood (financial loss)• Negligent misstatement – duty to take reasonable care in preparation

of reference, including ensuring accuracy of facts on which any opinion based

• To recipient of reference –• Negligent misstatement or deceit

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Liability for Negligent Misstatement –Not Just References

• McKie v Swindon College (May 11)• M worked for Swindon College from 1995 to 2002 and given an

excellent reference when left• In 2008, accepted position of director of studies at the University of Bath• New job involved M liaising with and visiting other further education

colleges, including Swindon College• Shortly after appointment, new director of Human Resources at

Swindon College sent e-mail to the University of Bath stating the College would not allow M on their premises

• University of Bath dismissed M summarily

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Liability for Negligent Misstatement –Not Just References (cont)

• M issued proceedings in the High Court in the tort of negligent misstatement

• Evidence showed M was a highly respected member of staff• Contents of e-mail were “fallacious and untrue”• The author of the e-mail had no personal knowledge of M• Procedure adopted by the College was “slapdash, sloppy, failing to

comply with any sort of minimum standards of fairness”• College should have gone through a formal process before sending the

e-mail

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Liability for Negligent Misstatement –Not Just References (cont)

• High Court held – • Swindon College’s e-mail had nothing to do with M’s appointment for

a job so was not a reference• Swindon College did owe M a duty of care – damage suffered was

“eminently foreseeable”, necessary degree of proximity even though six years had elapsed and it was fair just and reasonable to impose a duty of care

• the duty of care had been breached and the breach caused M’s dismissal

• Extends liability beyond the situation in which a former employer supplies a negligent reference

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Giving a Reference –Outstanding Allegations

• Jackson v Liverpool City Council (Sep 11)• Employers normally under no duty to provide a reference• If provided, reference must be true, fair and accurate• Employer must take reasonable care to ensure accuracy• Employer can refer to outstanding disciplinary proceedings provided

reference does not give misleading impression overall• L referred in written reference to record-keeping issues which had not

been investigated, but which would have resulted in performance plan if upheld and J had not left

• L explained in phone call that, as a result, certain questions could not be answered “in either a positive or negative manner”

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Giving a Reference –Outstanding Allegations (cont)

• J didn’t get job and sued L for having given negligent reference• High Court held that –

• reference was true and accurate, but not fair• unfair to refer to allegations without investigating them or giving J a

chance to refute them• L could have chosen not to give reference

• CA allowed appeal and held that –• L couldn’t be criticised for giving reference which made clear that

allegations not investigated• subsequent phone call was integral part of reference

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Other Issues

• Data protection issues –• Only provide sensitive personal data with explicit consent• Employee can make subject access request from recipient

• Requesting a reference –• Seek at least one employment reference• Make offer conditional on receipt of satisfactory references• Allow employee to comment on any potentially unsatisfactory

references received

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Practical Tips

• Comply with workplace reference policy• If providing brief reference only, state that company policy• Keep reference consistent with real reason for termination• Provide balanced overview, although no need to be comprehensive• Overall picture must not be misleading• Refer only to complaints or concerns of which employee aware• Don’t comment on suitability for another employer’s role• Include disclaimer and mark as confidential

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Thank you and Goodbye

asb law LLP, Innovis House, 108 High Street, Crawley, West Sussex RH10 1AS

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