This page provides some frequently asked questions about the scope of the employment check standards and how to meet compliance.
Q. Are employers required to carry out their own employment checks on agency workers/contractors?
Using an agency/contractor on a national framework agreement with the Crown Commercial Service (CCS) may provide a level of assurance of a compliant workforce. However this cannot offer any guarantees in terms of patient safety and standards of care.
Therefore, irrespective of any duties the employing organisation may place on their chosen agency/contractor to undertake the necessary employment checks on temporary workers, the overarching responsibility for assuring safe working practice falls to the employing organisation.
Organisations must check all relevant information that has been supplied on the temporary worker supplied. Organisations should seek assurances through their own scheduled audit and monitoring processes, that their chosen agency/contractor operates within the same high standards outlined by the NHS employment check standards. If in doubt, duplication will be preferable to gaps.
Q. Are employers required to undertake further pre-employment checks where staff are transferring under TUPE arrangements?
Although an individual’s terms and conditions transfer under the protection of TUPE rights, liability for assuring safe working practice sits with the new employing organisation.
The new employing organisation should always seek written assurances that the relevant checks were undertaken by the previous employer in line with the NHS Employment check standards. Additional checks may be required where such assurances cannot be sought, for example, where legal requirements have changed since the individual was first appointed (paying particular attention to any disclosure and barring service (DBS) requirements, or Home Office rules in regard to preventing illegal working).
Employers are recommended to seek legal advice for further clarity in relation to arrangements under the Collective of Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014. Further guidance for employers, employees and representatives can be found on the Department of Business, Innovation and Skills website.
Q. Are employers required to carry out their own employment checks on researchers before permitting them to undertake activities within their organisation?
The responsibility for undertaking pre-engagement checks on researchers will be dependent on the agreed contractual arrangements:
- where researchers have been processed through the research passport system, the Higher Education Institution (HEI) should undertake the necessary pre-engagement checks
- where individuals are undertaking research activity in an NHS organisation and, in addition, already hold a substantive contract of employment within the NHS, or where they are clinical academics with an honorary clinical contract, the research passport system does not apply. Responsibility for undertaking pre-engagement checks rests with the researcher’s substantive employer.
In all cases, the organisation hosting the research activity must seek the relevant written assurances from the researcher’s HEI or substantive employer, that the correct level of checks have been undertaken in line with the NHS employment check standards.
Where individuals hold a research passport, and once the organisation hosting the research activity has satisfied itself that appropriate checks have been recorded on the passport, these clearances can be relied upon for the full duration of the research activity, or for up to a maximum of three years, whichever may be the longest period.
There are however, certain circumstances where additional checks may be deemed justifiable. This includes where there is a change in the research activity which would trigger the need for a higher level of checks than those initially obtained; the individual has limited leave to remain and therefore there is a legal responsibility under Home Office rules to undertake a further check on the individual's right to work; or where there is any uncertainty about the robustness of the pre-engagement checks conducted or the validity of the research passport. In such cases, the organisation hosting the research activity should liaise with the researcher, their substantive employer, or their HEI to clarify any issues.
At a practical level, the organisation hosting the research activity should always ask the researcher to present an acceptable form of personal photo ID when reporting on their first day. This will help to seek the necessary assurances that the individual presenting themselves is the one to whom the research passport or associated employer assurances relates to.
For more detailed information about the use of honorary contracts and research passports, employers should refer to guidance on the National Institute of Health Research website.
Q. What assurances should employers seek when making appointments at very short notice to help deal with emergency or complex cases?
Doctors and clinicians are regarded as being in continuous employment where they already hold a substantive post within one NHS organisation and where they are asked to provide emergency cover or expertise in complex cases in another NHS organisation at short notice. Therefore in such cases, further pre-employment checks are not normally required. The hosting organisation should seek written assurances from the individual's substantive employer to verify that the appropriate checks have been undertaken and that the individual is suitable and fit to undertake the clinical role in question.
Employers may find it useful to refer to the certificate of fitness for honorary practice guidelines on our website. These guidelines, produced with the Academy of Medical Royal Colleges, can be used to seek the necessary assurances where emergency cover is required at short notice.
Q. How can we appoint refugees when they can often not display all the documents as required in the employment check standards?
The NHS Employers pre-employment check standards contain flexibilities that employers may exercise when an applicant is genuinely unable to present the documents as laid out in the standards. These are often applicants that are furthest from the jobs market, for example homeless people, people with learning disabilities, asylum seekers, refugees and other forcibly displaced people.
As NHS Employers is working closely with the Department of Health and Social Care and non-government organisations with a pilot to help place skilled refugee nurses, from both outside of the UK and within, back into employment. We have outlined below the existing flexibilities that may be exercised when appointing refugees.
Refugees should receive a biometric residence permit once their visa is approved. This document can be used as photographic evidence of identity. Employers should refer to page 8 of the 'obtaining proof of identity from those furthest from the jobs market' section of the identity checks standard.
If pre-employment checks are being conducted for refugees and other forcibly displaced people who are overseas, employers may choose to accept other forms of documentary evidence such as a passport or a travel document to check identity. Once granted leave to remain in the UK by the Home Office, employers may ask individuals to present their biometric residence permit and national insurance number to verify their identity and right to work in the UK.
Right to work check:
We defer to the Home Office on right to work guidance. If granted leave to remain in the UK, a refugee will be issued with a national insurance number and biometric residence permit and/or an Immigration Status Document (ISD) which clarifies their permission to work. Employers may ask the individual to present this and accept this as evidence of their identity and right to work in the UK, see the right to work check standard (page 10).
For more detailed information on acceptable documentation for different groups, see the Home Office guidance for employers on preventing illegal working in the UK.
Employment history and reference check:
Where limited references are available, the decision to appoint must be based on what the applicant can reasonably provide to support their application, see the employment history and reference check standard (page 6)
Criminal record check standard:
Refugees should be able to present a police check from countries that they have lived in for 12 months or more. An alternative to a formal police check is a certificate of good conduct or standing.
If candidates are unable to provide an overseas police check, employers should refer to the "Unable to obtain an overseas police check" section of the criminal record check standard for guidance (page 15 - 16).
In addition to any overseas police check, the Home Office recommends that employers should obtain a DBS check to assure themselves that the person does not have a criminal record in the UK; and, where relevant to the role, is not barred from working with children and/or adults.
Refugees in the UK should be able to present a biometric residence permit and proof of their current UK address to meet the identity requirements for a DBS check to be processed, see the criminal record check standard for guidance (page 15).