New Employee Background Checks - Good Practice or Breach of Privacy?

'Criminal records on sale for just £37', was the headline on Page 7 of this week's Sunday Times.

The article referred to the growing practice by employers and corporate investigators (numbering 50 between them so far)buying access to files at the Criminal Records Bureau (CRB) to do background checks on new employees. The CRB was set up 6 years ago to carry out checks on prospective employees whose work would bring them into contact with children and vulnerable adults - i.e. to find out if the prospective employee was unsuitable for that kind of work.

However, certain recruiters and employers are now getting access to CRB files to check the background of employees who are applying for jobs which do not involve access to children or vulnerable adults.

These agencies are now offering these unlawful checks to cover potential business partners and staff ranging from clerical staff to web designers.

Is Enhanced Disclosure Good Practice or Unlawful Prying?

One firm mentioned in the article offered to carry out 'Enhanced Background Checks' of administrative staff for companies claiming they were justified, caveatting this with the employee's consent should be sought although the firm's director admitted that they had not 'thoroughly checked' whether such permissions were given.

Another firm specialising in the same practice operated out of Essex but was headquartered in New Zealand claiming its Essex office was 'registered' with the CRB to have access to such records, although it confirmed it was not 'accredited' by the CRB.

The question may be arising - is this such a bad thing? After all, it is very important to follow up references given by employees rigorously and I would always recommend employers do this diligently and, if possible, cross reference the information. In this I mean, if possible, test whether a claim in a candidate's CV is spurious or not such as attending Chairman's Club or winning a specific deal etc when asking the referee. Of course, the referee may exercise the right of no reply which should not be taken as a denial but most referees will usually corroborate true facts.

So would getting access to the CRB files be further good practice or diligence? To give an example of the downside, the article claims that one such background check found that a complaint made to the information commissioner revealed a CRB check on an individual had shown the person had stolen a packet of meat worth 99p in 1984 when the person was just 16.

Where Does The Law Stand?

The article cites the landmark case of a gardener who was fired from their job after an 'Enhanced Background Check' had revealed two spent offences. He claims the checks were unlawful and unwarranted. The information commissioner has supported his claim which goes to court seeking compensation.

The CRB helpline was found to aggravate the situation as when one complainant called the person was told it would be prudent to comply to have the check done or face not being employed.

The fact is that the law is cloudy rather than clear. Such checks are specifically designed to stop sex offenders having jobs which involve children or vulnerable adults. If there is no suggestion of either being involved, then such checks are not justified.

What Ifs?

So if an employer suggested that a gardener may come into contact with children whilst carrying out their duties, would that be justified even they 'stretched the truth'? And what if a sales manager were to be in contact with unmarried young ladies, would that be justified on the grounds that the employer might want to know if the prospective manager had a history of sex offences, and in doing such checks just happened to find out the person's misdemeanour 20 years ago involving persistent apple scrumping?

What the report did reveal is that detailed financial checks can be made for as little as £20, police files for about £40, driving for £20 and identity at around £20.

Where Do You Stand On This?

As a person making decisions on behalf of a company that will cost significant money in terms of recruiting fees, compensation but also opportunity cost for making a wrong decision would it not be good, if not, even best practice to do as thorough as possible background check to minimise risk?

I remember a famous incident of a quasi-government Agency (Note how vague I am being) who employed a Finance Director with apparent impeccable credentials and background. He subsequently allegedly hired a hotel room to 'interview candidates in bikinis' for the post of Assistant. The person subsequently flew to Chicago via Concorde to New York, checked into an expensive hotel and found that his meeting had not been confirmed and so flew back again. It was later revealed the person was bogus.

Closer to home, when I worked at a computer reseller, we employed a Scottish salesman who shared a name with a rather famous Spaceship Captain. He was larger than life in many respects including the fact it was not his real name and he had no fixed abode - we only found out when police popped by asking questions about him for various other reasons. There was also the recent case of the chap who passed himself off as a Forensic Scientist for many years and participated in many trials as an expert witness only to find he was just the local lad from a pub.

The fact of the matter is that employers should be able to mitigate risk as much as possible and protect themselves from potential 'rotten employees'. However, you have to also to temper this with the fact that a minor misdemeanour involving alcohol and some clumsily broken glasses in an Indian restaurant 23 years ago really was just a one off piece of high jinks that should have been settled with a cheque for a few quid, a dustpan and brush.

Information in the 'Information Era'

We do live in an era of unprecedented amounts of stored data. Much of this can be more easily accessible than we think even if we use the most sophisticated firewalls as more and more data is actively lawfully and not sold by agencies holding the data or even lost by daft employees getting their laptops or memory sticks stolen or even archive agencies flogging their old PCs on eBay. Our information is freely surrendered to all and sundry and can be accessed far too easily. And the embarrassing misdemeanours of the past can be more easily brought to light.

But is it fair for your employer to know you might have had a telly repossessed 15 years ago when times were hard or that you served a driving ban 10 years ago even though you don't have a company car in the job? Or is it sound information to have at hand when deciding on candidates to know one was arrested outside the House of Commons in a gay Rights march and the other was not?

I would be really be interested to hear your views.