There are many legal and cultural considerations to consider when implementing a background screening program in the United Kingdom (UK). The UK, which encompasses the geographical region of England, Wales, Scotland, and Northern Ireland, has numerous laws impacting background screening. In particular, it is important to be aware of the UK’s unique data privacy laws and legislation that is focused on the rehabilitation of ex-offenders stemming from the Rehabilitation of Offenders Act 1974. The most commonly conducted background checks in the United Kingdom include verifying an applicant’s education and employment history, checking professional references, and conducting criminal records checks. There are numerous other background checks available in the UK, including reviewing an individual’s credit history and motor vehicle records but these searches are usually only conducted when they are relevant to the position being filled. Other background searches in the United Kingdom include Civil Records, Bankruptcy Records, Credit Check, Directorship Search, Passport Check, ID Verification, Global Search (sanctions and watch lists), Professional License Verification and Professional References. There rare also numerous background check requirements for regulated positions in the financial field. The following are the types of background checks in the UK:
- Basic Disclosure is the lowest level of Disclosure in the UK and is available to anyone for any purpose. A Basic Disclosure in the UK provides details of unspent convictions as defined by the Rehabilitation of Offenders Act 1974. If no unspent convictions are found, the Disclosure will state that there are no convictions. The Police National Computer houses the records that comprise a Basic Disclosure which includes information from England and Wales, Scotland, Northern Ireland, the Isle of Man, and the Chanel Islands (Jersey and Guernsey).
- Standard Disclosure is the second level of Disclosure in the UK, which reports spent convictions, or convictions that have reached a set period as defined by the Rehabilitation of Offenders Act 1974 and are no longer on a criminal record. The Standard Disclosure also reports unspent convictions, which are convictions that have not yet reached the defined time defined by the Rehabilitation of Offenders Act 1974. The Standard Disclosure is only available for specific positions.
- Enhanced Disclosure, which is only available for specific positions, is the highest level of Disclosure in the UK that reports spent convictions, unspent convictions, cautions, warnings, and reprimands. This Disclosure may also contain non-conviction information that a Chief Officer or Chief Constable may choose to disclose if they believe it to be relevant to the position in question.
It is important to note that Standard and Enhanced disclosures are only available for employers located in the UK. Here are few other considerations to take into account when conducting background checks in the UK:
- The Rehabilitation of Offenders Act 1974 (ROA) legislation affects many facets of background screening in the UK. The purpose of the ROA is to help ex-offenders find employment, so convictions become “spent” after a particular period of time. Employers are only allowed to ask about unspent convictions for employment purposes unless the position is included in the “Exceptions Order” from the Police Act 1997.
- Data protection in the United Kingdom is taken very seriously. The Data Protection Act 2018 lays out restrictions for the handling of personal data, including that it is used fairly, for specific purposes, and that it is not kept longer than necessary. The UK did withdraw from the EU 01/31/2020; however, will still be regulated by the GDPR until the end of the transition period 12/31/2020. They also passed its own version of the law, the UK-GDPR (United Kingdom General Data Protection Act) on 01/31/2020 in order to avoid being classified by the EU as a “third country” (a country the EU sees as having a less than adequate level of data protection that disqualifies it from enjoying free data flow with the EU). So technically, not only does the Data Protection Act 2018 apply (which was amended also on 01/31/2020 to be read in conjunction with the UK-GDPR as opposed to the EU GDPR as it previously stated) but the UK-GDPR applies, as well as the EU GDRP until the end of this year.
- Criminal history. There are two ways to search for criminal history in the UK, including through the Basic Disclosure (recommended) and a Nationwide Criminal Database. Criminal history information is considered to be “sensitive” data and criminal convictions should only be considered if it is relevant to the position being filled.
- Drug testing is not commonly performed outside of the United States, including in the UK. As outlined in the Code published by the ICO, drug testing is considered to be “sensitive” data as it relates to an individual’s physical or mental health or condition. The Code notes that drug and alcohol testing may not be justifiable unless there is a pertinent health and safety reason. For example, post-incident drug testing is more likely to be considered justifiable than random drug testing. Given the potential privacy implications, clients should consult with qualified legal counsel before implementing a drug testing program in the UK.
- Working with children. The International Child Protection Certificate is a criminal record check for residents of the UK, or for people who have lived in the UK in the past. It checks criminal records for convictions of people who are applying for a position working with children. There is also a DBS (Disclosure and Barring Service) check for job applicants who plan to work professionally with children in England and Wales.
- Employment History in the UK is typically verified over the last seven years. Past employers are contacted to verify the individual’s title, dates of employment and if the candidate is eligible for rehire.