This section provides you with more information about the NHS Employment Check Standards including their purpose, strategic framework and compliance.
Purpose of the standards and compliance
The NHS Employment Check Standards set out six key checks that all NHS organisations within England are required to undertake in the appointment and ongoing employment of individuals in the NHS.
The standards apply to all applications for NHS positions (prospective employees) and staff in ongoing NHS employment. This includes those engaged directly in paid work (whether on a permanent, fixed-term or zero-hours contract), and temporary workers (including locum doctors, workers on a trust bank and other workers supplied by an agency or third party contractor). The standards also apply to those undertaking unpaid work in the NHS such as volunteers, students on placement, and individuals undertaking work experience.
Pre-appointment checking seeks to verify that applicants meet the preconditions of employment. The standards, last updated in March 2016, include those that are required by law or are otherwise considered mandatory.
The NHS Employers organisation has developed these standards in partnership with the Department of Health, the Centre for the Protection of the National Infrastructure and employers in the NHS.
Employers have a duty of care to patients and staff to ensure that all reasonable checks are undertaken to identify any reason that, if known, would result in an individual not being appointed to undertake activities on their behalf. It is therefore crucial that employers ensure that those working within their organisation:
- Possess the essential knowledge, skills and other key attributes required to undertake their role
- Are legally permitted to undertake such roles and are not restricted or barred from undertaking the role they are applying for
- Are of sound character to undertake such roles.
Employers need to ensure they carry out fair recruitment processes, reminding all applicants that they will be required to supply original documents which confirm their immigration status and right to work. Below are some key points to consider.
The NHS Employment Check Standards are periodically reviewed to ensure that they remain completely up to date with legal requirements and are fit for purpose. Where employers choose to download hard copies of the standards, it is essential that they regularly refer to this website to ensure that they are fully compliant with any updated requirements.
- Organisations should enforce a uniform right to work policy, which requires all short-listed applicants to provide the prescribed documents confirming their immigration status and right to work.
- Checks are most effective if they form an integral part of local policies, practices and procedures for the recruitment, hiring, and where necessary, training of employees.
- It is strongly recommended that only one department be responsible for carrying out pre-appointment screening to ensure consistency, generally this falls to HR as the lead on the recruitment and selection of employees.
- A dedicated manager or senior member of staff should be appointed to lead the process to ensure that checks and protocols are adhered to and information is shared appropriately.
- Individuals must not be appointed until necessary assurances are gained to ascertain the individual’s suitability for a particular role.
- The level and degree of checks carried out at the recruitment stage and as part of any ongoing employment, must be proportionate to the potential risk or opportunity to cause harm or damage the post being applied for may pose. This includes but is not exclusive to, any harm or damage to patients, staff, the public, or organisational reputation.
- Any decisions as a result of the checks must be made objectively and without bias; and based on the balance of risk and the overriding need to ensure the safe and effective provision of healthcare services.
- No single applicant should be singled out, nor should assumptions be made about their right to work. Questions relating to immigration should be asked only for the purpose of determining whether or not an individual has valid immigration clearance for the role.
- Monitoring the diverse characteristics of your workforce by asking voluntary questions in relation to gender, disability and ethnicity remain justified and ensure employers are targeting a diverse pool of potential job applicants.
- Trusts using agency, contractor or other external bodies to provide services must ensure, through regular audit and monitoring, that their providers comply with these standards.
- In all cases, policies and practices must be fully compliant with all relevant employment legislation such as data protection, human rights, equality and diversity.
Employers are encouraged to carry out regular audits of organisational processess, policies and documentation to help both identify and manage risks along with minimise any threat of non-compliance including claims for discrimination.
All NHS providers are required to register with the Care Quality Commission (CQC). As part of this registration providers are required to comply with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (as amended) and the Care Quality Commission (Registration) Regulations 2009.
These regulations outline a set of fundamental standards which must be met, including the need for providers to have robust recruitment and employment practices in place to ascertain a person's fitness and suitability for the job they are being appointed to do. Employers will be able to demonstrate that they are meeting the relevant regulatory requirements in this regard, by evidencing compliance with the NHS employment check standards.
The Employment Check Standards are also embedded in the Crown Commercial Service (formerly known as the Government Procurement Service) National Agency Framework Agreement and annual audit checks of agencies, to assure compliance with the standards is met in relation to contracted and sub-contracted staff.
Failure to meet the requirements outlined by the employment check standards could potentially put the safety and even the lives of patients, staff and the public at risk.
Ultimately, the responsibility for assuring that all pre-employment checks are undertaken lies with the employing organisation. Therefore, where appointing staff from an agency or other external body to provide NHS services, employers will need to seek appropriate assurances that these providers have undertaken employment checks in compliance with this standards and that they too are keeping their operational practices up to date.
Periodic auditing and monitoring of the systems and processes in place should form part of any scheduled auditing and monitoring of contractual arrangements with these suppliers. Any contractual agreement with an agency or third party provider should clearly outline:
- details of the level and type of checks required for different posts
- a statement to the effect that the agency/third party provider will not receive payment for their services unless it provides staff who have been adequately screened
- the agency/third party provider will be liable for any financial penalties if it is discovered that the staff they supply have not been adequately screened
- a statement that the contracting organisation (being the NHS body) retains the right to audit the employment checking process at any time to ensure that they are in line with requirements
- the agency/third party provider must inform the contracting organisation immediately when a contractor that has been placed for any period at the NHS body is undergoing any disciplinary procedures, has been dismissed, has been arrested or any other similar occurrence
- make clear that these arrangements be cascaded to sub-contractors.
Read more about seeking assurances on compliance, in relation to employment checks for temporary workers and contractors.
Under the Equality Act 2010, employers must not unlawfully discriminate in their recruitment processes on the grounds of the following protected characteristics:
- Gender re-assignment
- Marriage or civil partnership
- Pregnancy or maternity
- Religion or belief
- Sexual orientation
To avoid discrimination, employers must treat all job applicants in the same way at each stage of their recruitment process and undertake document checks on every prospective employee. A statutory code of practice is available from the Home Office to help avoid discrimination while preventing illegal working.
Employers could face prosecution under the Equality Act 2010 and an unlimited fine if they are found guilty of discriminatory processes.
Avoiding racial discrimination
Assumptions must not be made about a person's right to work or immigration status on the basis of their:
- skin colour
- ethnic or national origins
- the length of time they have been in the UK.
Where complaints of racial discrimination are upheld by an employment tribunal, employers can be ordered to pay compensation for which there is no upper limit.
Avoiding indirect discrimination
Indirect discrimination applies where a condition or requirement is imposed by an employer, which applies equally to everyone, but is harder for an individual from a particular racial group to meet and cannot be objectively justified.
For example rejecting an individual who failed an English language requirement, which is not necessary to perform the role.
Withdrawal of appointment on the grounds of health
No applicant should be refused employment on health grounds unless:
- Expert occupational medical advice has been sought
- The applicant has had opportunity to discuss issues raised with an occupational health professional
- The recruiting managing has given full consideration to all of the facts.
Validating documents and recording information
There are a range of websites which employers may find useful when validating documents:
NHS Employers must carry out all checks in compliance with the Data Protection Act 1998.
Information should only be obtained where it is absolutely essential to the recruitment decision and kept in accordance with the Act. Employers must record the outcome of all checks undertaken using the Electronic Staff Record (ESR) where available, or an alternative HR management system.