There was a time when the courts provided considerable freedom for employers when choosing there employee. Indeed, in Allen v Flood 1898, Lord Davey said that:

“An employer may refuse to employ… for the most mistaken, capricious, malicious or morally reprehensible motives… but the workman has no right of action against him…”

Fortunately, for employees, the law has moved on and employers will have certain restraints imposed upon them when selecting an employee. Employers should be aware of the Equality Act 2010 and what amounts to direct and indirect discrimination.

There has been a recent decision by the European Court of Justice on the right to see information on the successful candidate by an unsuccessful job applicant.

Employers should be aware of the Rehabilitations of Offenders Act 1974, Rehabilitation of offenders Act 1974 (Exceptions) Order 1975 as amended, the Care standards Act 2000 (Rehabilitation of Offenders Act (Exceptions) (Amendment) (England and Wales) Order 2003), the Police Act 1997.

Section 112 makes available a certificate to individuals (not employers) on payment of a fee, to assist employers who request a criminal convictions certificate.

However the certificate will not include cautions or convictions that are ‘spent’ under the Rehabilitation of Offenders Act 1974.

Section 115 provides for an ‘enhanced criminal record certificate’ for particularly sensitive areas of work or licensing where vetting already takes place. In addition to the detail provided by the certificate above.

This certificate includes additional information from police records including non-conviction information.
In the recent case of Lister and Others v Hesley Hall Ltd 2001, the House of Lords held that an employer was vicariously liable for the sex abuse by its warden of children in a residential home, the employer was liable for compensation.