A rise in the number of discrimination cases could be caused by an increase in background checks in response to the new rights for day-one employees.
Nockolds, a law firm, has warned that employers will be more likely to check criminal records and conduct other background checks before making hiring decisions if the Employment Rights Bill is passed.
The early investigation by organisations who fear making a mistake at the recruitment stage may lead them to discriminate against new potential employees if they discover police records that were previously hidden.
Ministry of Justice statistics showed that, in the UK around one-fourth of people of working age had a record in the Police National Computer. This included impending prosecutions and cautions as well as cases that did not require further action.
Nockolds says that while standard Disclosure and Barring Service checks (DBS) do not include non-crime hate reporting, they could be included in enhanced DBS checks, which will likely be carried out more often with the expansion unfair dismissal rights.
Joanna Sutton is a principal associate with Nockolds. She said that the use of DBS checks and other background checks have been increasing for years. However, unfair dismissal rights on day one are likely to increase their use. Employers may be more cautious due to the increased costs of hiring mistakes. This could lead them to discriminate against potential hires and trigger tribunal claims.
She said that employers are not allowed to discriminate against applicants with criminal convictions or cautions on their record.
Sutton stated: “Many employers are likely to be hesitant to hire candidates who have any sort of criminal record. They may not give them the benefit-of-the doubt.
Background checks are usually the last thing that employers do before a candidate starts work. If an offer is suddenly withheld or not made, the candidates will suspect the results of the background check.
The Rehabilitation of Offenders Act of 1974 protects applicants from discrimination on the basis of spent criminal convictions. They are not required to disclose these to prospective employers even if they specifically ask.
Nockolds, however, believes that the increased use of DBS checks could compromise diversity, equity, and inclusion (DEI), initiatives.
Sutton said: “HR professionals may see tension between the desire for a diverse, inclusive workplace and hiring someone who has been cautioned over a hate crime that is not a crime which runs against this aspiration.”
“On one hand, candidates are entitled to not be discriminated on the basis their beliefs. But what if an open expression of these beliefs at work leads to harassment or other forms of discrimination?”
She warned employers to tread carefully, warning that day one unfair dismissal rights are likely to bring up related dilemmas.
