Background information on applicants

Background checks

Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party?

The Rehabilitation of Offenders Act 1974 applies, except in respect of certain exceptions (eg, working with children or vulnerable people and certain other occupations, including professions (eg, the medical and legal professions) and particular financial sector occupations). The Act prevents certain other employers from refusing to employ someone in a situation in which an employee or candidate has disclosed or has failed to disclose an offence that is spent under the Act. The check can be carried out by the employer or a third party. Disclosure and Barring Service checks are required before an applicant can work with young children or vulnerable adults, and may be desirable in other circumstances (eg, for those professions and occupations covered by the Rehabilitation of Offenders Exceptions Order).

Medical examinations

Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment?

Pre-employment health checks or questions are specifically regulated under the Equality Act 2010. Except in prescribed limited circumstances, pre-employment questions of or about an applicant for work are prohibited before an offer of work to the applicant is made, or before his or her inclusion in a pool from which candidates for work will be selected.

Individual offers of employment can be made conditional upon satisfactory health checks, but a recruiting employer may then render itself liable to discrimination claims if it appears that an offer is not confirmed based on the information disclosed by the health checks.

Medical reports given by a medical practitioner responsible for an individual’s care (rather than by an independent doctor appointed by the employer) are subject to the Access to Medical Reports Act 1988, which essentially allows the patient the right of prior sight and comment on the report.

Medical information about an individual also constitutes a special category of personal data for the regime of protection of the Data Protection Act 2018 (DPA 2018), under the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR).

Drug and alcohol testing

Are there any restrictions or prohibitions against drug and alcohol testing of applicants?

General principles derived from DPA 2018 (and the GDPR) and the Human Rights Act 1998 suggest that any such checks should be ‘justified, necessary and proportionate’. Such checks tend, therefore, to be found in the context of particular roles within the transport and manufacturing sectors (justified by health and safety considerations) and sometimes also for particular roles within the financial and other professional sectors.

During employment, even where such checks are appropriately justified, it is recommended that their use also be reflected in an appropriate provision in relevant employment contracts.

It is rarely appropriate for such checks to be undertaken by the individual’s doctor as, additionally, the rights afforded under the Access to Medical Reports Act 1988 would apply to the resulting report. Issues can arise, particularly where the requirement to submit such checks appears unjustified or unjustifiably targeted at particular groups.

Hiring of employees

Preference and discrimination

Are there any legal requirements to give preference in hiring to, or not to discriminate against, particular people or groups of people?

No. Positive discrimination is generally unlawful in the United Kingdom; however, there are certain additional positive requirements imposed on public bodies, and ‘reasonable adjustment’ in disability discrimination is regarded as a form of partial positive discrimination.

Under the Equality Act 2010, employers in the United Kingdom may (although they are not required to) take under-representation of those with protected characteristics into account when selecting between two equally qualified candidates for recruitment or promotion, provided that there is no automatic selection of under-represented groups, and decisions are not made irrespective of merit (ie, by the use of mandatory quotas, which is an increasingly common phenomenon in mainland Europe). Regardless of the new provisions, the selection of a less-qualified candidate, because he or she is in a protected category, remains unlawful.

Must there be a written employment contract? If yes, what essential terms are required to be evidenced in writing?

No, there is no statutory requirement for a written employment contract. There must, however, be a statutory statement of particulars, which must be provided to the employee or worker on day one of their employment, incorporating the following:

  • the names and addresses of the employee or worker and the employer;
  • the start date and the continuous employment commencement date;
  • the job title;
  • the place of work;
  • the length of the temporary or fixed-term work;
  • terms relating to work outside the United Kingdom for a period of more than one month;
  • remuneration details;
  • the hours of work;
  • the days of the week on which he or she is required to work and whether working hours or days may be variable;
  • any probationary period that starts at the beginning of the engagement, including any conditions and its duration;
  • holidays and holiday pay;
  • sickness and sick pay;
  • any other paid leave (eg, family related leave such as maternity or paternity leave, or time off for public duties);
  • the pension;
  • any part of any training entitlement that the employer requires him or her to complete, including any training that it requires but does not pay for;
  • any other benefits provided by the employer;
  • the notice period;
  • whether the work is temporary or fixed-term;
  • collective agreements; and
  • the disciplinary and grievance procedures.

 

Therefore, it is common practice in the United Kingdom for all employees to have a written employment contract with their employers that contains at least the terms set out above.

Certain types of clauses are unlikely to be enforceable unless they are in a written employment contract; for example, post-termination covenants not to compete, post-termination confidentiality and intellectual property protection.

To what extent are fixed-term employment contracts permissible?

They are permissible; however, certain rights and protections are given by the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. There is no maximum duration of contracts, but successive fixed-term contracts of four or more years will automatically be deemed to be permanent contracts with the employer unless objectively justified by the employer.

Probationary period

What is the maximum probationary period permitted by law?

There is no maximum period. Customarily, employers will impose a period of six months or less. This probationary period may be extended at the discretion of the employer if stated in the employment contract.

Classification as contractor or employee

What are the primary factors that distinguish an independent contractor from an employee?

An employee is someone required to perform work under the control of an employer, and the employee has no power to substitute his or her labour. An employment relationship is also characterised by the fundamental mutual obligations to personally perform work (employee) and to provide and pay for it (employer). There is no single determining test of employment. Various factors will be considered, including the amount of control exercised over an individual by the hirer, whether the individual is required to personally provide the services and the extent to which the individual is integrated within the business.

An independent contractor is in business on his or her own account, takes profits and bears losses and risks, and controls his or her own work product. He or she normally (subject to limited exception) has the power to substitute labour. Determination of employee or independent contractor status is a question of substance over form.

Temporary agency staffing

Is there any legislation governing temporary staffing through recruitment agencies?

The Agency Workers Regulations 2010 implements EU law to guarantee that basic employment conditions are no less favourable for temporary agency workers and that they have equal access to facilities and opportunities as permanent staff. The regulations provide two different classes of rights: those that are provided as soon as the agency worker starts at the company (day one rights) and those that are granted after 12 weeks’ continuous work.

Day one rights include access to the hirer’s collective facilities and amenities and information about vacancies with the hirer. This means that the agency worker must be provided with the same access to collective facilities and amenities that the hirer would offer to its own employees. Agency workers are also protected from less favourable treatment (unless this can be objectively justified) and must be provided with information about job vacancies.

Once a temporary agency worker has completed 12 weeks’ continuous work at the hirer, he or she is entitled to the same basic working and employment conditions as a comparable worker employed by the company. This means that he or she is entitled to the same pay, duration of working time, conditions concerning night work, rest periods and annual leave as a comparable worker employed by the company. From 6 April 2020, agency workers who have entered into a ‘pay between assignments contract’ (previously exempt from pay parity) will also be entitled to equal treatment concerning pay.

Any breaches of the Agency Workers Regulations will be enforceable against the recruitment agency in the first instance unless it can demonstrate that it has satisfied conditions in respect of taking reasonable steps to ensure that the hirer complies with the regulations. If this can be shown, then liability will pass to the hirer.

The Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended) also regulate staffing through recruitment agencies. In particular, the law:

  • prohibits an employment agency or employment business from charging agency workers a fee for finding them work;
  • prescribes the terms that must be agreed upon by agency workers;
  • prescribes the terms that must be agreed upon by hirers;
  • prohibits the use of agency workers to replace individuals taking part in industrial action; and
  • limits the transfer fees that may be charged to a hirer if the agency worker becomes directly engaged by the hirer.