Important and/or distinctive aspects of recruitment legislation in UK

Data protection

Employers must ensure that employee data is collected, stored and processed in compliance with the requirements of the Data Protection Act 1998 (the"DPA"), even where the processing, collection and/or storage is outsourced to an external provider, and must ensure that any employees collecting, storing or processing such data also comply with DPA obligations. For sensitive personal data, prior employee consent is usually needed.  Such data must be kept secure and for no longer than necessary. There are also restrictions on transferring it outside the EU without adequate protection.

Online and social media checks

These are controversial in the UK, and employers are not encouraged to rely on information collected from social media sites. Employers should avoid using deception to gain access to an applicant's social media profile and should not ask applicants to provide their username and password in order to review their social media accounts.

In addition to potential data protection breaches, employers run the risk of obtaining information about "protected characteristics" (such as information relating to age, sexual orientation, marriage status, disability, race and religion) and any decision to hire or not hire consequently being deemed discriminatory.

Criminal record checks

Certain roles require the employer to check an applicant's criminal background; checks should only be made to the Disclosure and Barring Service ("DBS") and only when the employer intends to recruit that candidate.

UK law draws a distinction between "spent" and "unspent" convictions. Employers should not ask for 'spent' convictions unless it is an excepted role or profession as this carries sanctions.

Credit checks

Any searches should be proportionate and appropriate for the role (this is normally only suitable for senior roles involving financial duties).

Health checks

Searches should be relevant and aimed either at seeking specific information relevant to the role or ascertaining that no reasonable adjustments are required in relation to a disability; general information gathering is not permitted. Health information cannot be used in the decision-making process other than where it relates specifically to the requirements of the role.

TABLE CONTAINING JURISDICTION BY JURISDICTION ANALYSIS (PDF)