An increase in background checks carried out in response to new day-one employment rights could lead to more discrimination cases.
Law firm Nockolds has warned that the Employment Rights Bill, which is set to remove the two-year qualifying period for unfair dismissal claims, is likely to prompt a rise in criminal record and other checks by employers prior to making a hiring decision.
These early investigations by organisations that fear getting it wrong at the recruitment stage could mean they discriminate against potential new employees due to police records being uncovered in cases where they may have previously remained hidden.
Ministry of Justice data showed that in the UK, around one in four people of working age have a record on the Police National Computer (PNC), which includes impending prosecutions, cautions, and cases that require no further action, such as non-crime hate incidents, as well as those with convictions.
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According to Nockolds, while basic and standard Disclosure and Barring Service (DBS) checks would not include information about non-crime hate reports, this information could be disclosed in enhanced ones which are likely to be more widely carried out with the expansion of unfair dismissal rights.
Joanna Sutton, principal associate at Nockolds, said: “The use of DBS and other background checks has been rising for many years, but day-one unfair dismissal rights are likely to turbocharge their use. The increased cost of getting hiring decisions wrong is likely to make employers extra cautious, which may lead to them discriminating against prospective hires, thereby triggering tribunal claims.”
She explained that problems are likely to arise with applicants who have spent criminal convictions, cautions and non-crime hate incidents on record, highlighting that it is illegal for employers to discriminate against these candidates except in rare circumstances.
Sutton said: “Many hirers are likely to have reservations about candidates with any kind of police record and may be disinclined to give them the benefit of the doubt.
“Background checks are normally the last thing employers do before an individual commences employment, so if an offer is suddenly withdrawn or not forthcoming, candidates are likely to suspect that the result of the check is the reason.”
The Rehabilitation of Offenders Act 1974 protects candidates from discrimination based on spent criminal convictions, which they are also not usually obliged to disclose to prospective employers, even if specifically asked.
However, Nockolds believes diversity, equity and inclusion (DEI) initiatives could now be compromised with more use of enhanced DBS checks.
Sutton added: “HR professionals might see a tension between the desire to promote a diverse and inclusive workforce and employing someone cautioned for a non-crime hate incident which runs contrary to that aspiration.”
“On the one hand, candidates have the right not to be discriminated against on the basis of their beliefs but what if the open expression of those beliefs in the workplace leads to harassment or discrimination against someone else?”
She advised employers to “tread with care”, warning that the introduction of day-one unfair dismissal rights is likely to bring related dilemmas to the fore.
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