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Recruitment

Advertising

What are the requirements relating to advertising positions?

Employers use various channels to advertise job positions, including social media, but should ensure that they do not discriminate as part of the advertising process. A job applicant can bring a claim against a potential employer for:

  • discrimination in the arrangements made for recruitment;
  • discrimination in the terms of employment offered;
  • discrimination as a result of a refusal or deliberate failure to offer employment; or
  • harassment.

Background checks

What can employers do with regard to background checks and inquiries in relation to the following:

(a) Criminal records?

While criminal records checks are not normally mandatory, pre-employment screening is mandatory for people to be employed in a ‘regulated activity’ – broadly involving work with children and provision of health and other care. Subject to certain exceptions (including individuals working in regulated positions, such as within financial services), a person who has been convicted of a criminal offence but does not re-offend during a ‘rehabilitation period’ (which depends on the offence and sentence imposed) is entitled to treat himself or herself as having a clean record (ie, the conviction is ‘spent’).

(b) Medical history?

Under the Equality Act 2010, it is unlawful for employers to ask questions about health and disability before making a job offer – with some limited exceptions. Employers can ask candidates information about their health (eg, to complete a pre-employment health questionnaire or to attend a medical examination) after a job offer has been made. However, employers should consider whether this medical information is necessary.

(c) Drug screening?

Drug screening (whether as part of the recruitment process or during employment) is permitted, but can be undertaken only with the individual’s explicit consent. The use and application of drug tests should be justified, necessary and proportionate. Drug tests are therefore more common in safety-critical sectors such as transport or construction, or for roles where drug abuse risks compromising the integrity of the individual or position, or the recruiting organisation (eg, public sector roles such as police officers).

The Information Commissioner’s Office (an independent body set up to uphold information rights in the United Kingdom) makes a number of recommendations in relation to drug testing – including, given the intrusive nature of the tests, that employers undertake and document an impact assessment.

(d) Credit checks?

Credit checks should be carried out only where they are relevant to the position for which an applicant has applied (eg, where the position involves giving financial advice) or where financial difficulties could expose the employee to risks of bribery or other security risk.

(e) Immigration status?

Prior to allowing a job applicant to start work, employers should take the following steps to check whether he or she has the right to work in the United Kingdom:

  • Require the job applicant to produce original documents from List A or B, indicating that he or she has the right to work in the United Kingdom;
  • Check that the features of the documents meet the requirements set out in List A and B, that they appear to relate to the job applicant and that they are not forgeries; and
  • Take copies of the original documents and certify them as true copies of the original documents (the individual certifying the documents must clearly sign, write his or her name and state the date on which the copy was taken).

Although it is not a legal requirement to check and retain copies of such documents, by doing so employers are provided with a statutory excuse (defence) against liability for a civil penalty for illegally employing a migrant worker. Copies of such documents should be kept for the duration of the person’s employment and for two years thereafter. However, an employer that checks and retains copies of documents confirming a worker’s right to work will not have a statutory excuse if it nonetheless knowingly employs an illegal migrant worker or has reasonable cause to believe that an employee does not have the lawful right to work in the United Kingdom.

(f) Social media?

This is permitted, but only where the screening is for a specific and good reason and is not arbitrary. The extent of the screening must be necessary and proportionate to achieve that reason. Employers using social media sites as part of a recruitment process should let candidates know this, and should explain what form these checks will take and why they are considered necessary. Candidates should ideally also be given an opportunity to comment on any information obtained via such checks if it may negatively influence the decision to offer them a job. 

(g) Other?

If the position involves giving financial advice or if financial difficulties could expose the employee to risks of bribery or other security risk, a prospective employer may wish to check whether a county court judgment has been issued against the individual. A county court judgment is a judgment issued by the UK county courts when someone has failed to pay money that he or she owes. 

Wages and working time

Pay

Is there a national minimum wage and, if so, what is it?

The national minimum wage (NMW) applies to all workers aged 16 to 24 years old. The national living wage (NLW), introduced in April 2016, applies to workers aged 25 and over.  The NMW rate varies depending on the age of the worker and whether he or she is in training. For example, the NMW for 21 to 24 year olds is currently £6.95 per hour.  The NLW is currently £7.20 per hour.

Are there restrictions on working hours?

The Working Time Regulations 1998 restrict workers from working more than 48 hours per week, averaged over a 17-week period. Employers are entitled to ask (not require) their workers to consent in writing to opt out of the 48-hour weekly working limit, provided that the workers then have the right to cancel the opt-out agreement by giving at least seven days’ (up to a maximum of three months’) notice.

Hours and overtime

What are the requirements for meal and rest breaks?

The Working Time Regulations 1998 provide workers with a minimum uninterrupted 20-minute rest break where the working day exceeds six hours. Workers are also entitled to 11 hours’ uninterrupted rest per day and 24 hours’ uninterrupted rest per week (or, at the employer’s request, 48 hours’ uninterrupted rest per two weeks).

How should overtime be calculated?

The employer determines the payment and rate of any overtime. A common rate is time and a half on working days and double time on weekends and bank holidays.

What exemptions are there from overtime?

Not applicable. The more senior the role, the less likely it is to carry payment for overtime working.

Is there a minimum paid holiday entitlement?

The Working Time Regulations 1998 provide for an entitlement for full-time workers of 5.6 weeks’ paid holiday per year. The entitlement may include public and bank holidays – normally eight per year in England and Wales. Entitlement is pro-rated for part-time workers.

What are the rules applicable to final pay and deductions from wages?

Deductions from wages are permitted if:

  • they are required by statute (eg, deductions for income tax) or a relevant provision in the worker’s contract; or
  • the worker has signified in writing his or her agreement or consent to the making of the deduction.

Payslips given to employees must include details of the amount and purpose of any deductions from wages.

Record keeping

What payroll and payment records must be maintained?

Pay As You Earn is Her Majesty’s Revenue and Customs’ (HMRC) system to collect income tax and national insurance contributions from employment. Employers must record and report their employees’ payments and deductions to HMRC on or before each payday.

Itemised pay slips must be given to employees at or before the time at which wages are paid, and must include, among other things, details of gross and net wages.

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