The introduction of day-one rights for unfair dismissal could trigger a significant increase in tribunal claims for discrimination, according to legal experts. A law firm has warned that any rise in Disclosure and Barring Service (DBS) and other background checks on new hires may also increase legal challenges for employers, as the law also limits the types of checks which can be carried out.
Impact of Day-One Rights on Background Checking
The removal of the two-year qualifying period for unfair dismissal claims means employees will be protected against unfair dismissal from their first day of employment. This has led to concerns that businesses may rely more heavily on DBS checks and other screening processes to reduce hiring risks. At present, the law allows employers to dismiss an employee within the first two years of work for any reason. The only exception to this is the standard discrimination rules regarding protected characteristics – employers can’t sack you for being gay, or getting pregnant, for example. When the law changes, this will no longer be the case, so employers are likely to do far more intensive background checking, vetting and examining references to make sure that they are hiring someone suitable for the position.
Challenges for Candidates and Employers
The expanded use of DBS checks raises concerns about potential discrimination, particularly if job offers are withdrawn after a DBS check is carried out. Lawyers have highlighted the potential for discrimination claims if someone thinks they have ticked all the boxes to start a new job, has handed in their notice and then later has that offer withdrawn because of something on a DBS certificate.
Employers are also likely to look at other strategies for reducing potential claims for unfair dismissal by running lots of checks before hiring someone. This could include using standard structured interviews where everyone is asked the same questions, and checking all references fully.
Pre-employment checks take time and if employers are running more checks on all workers, it could take longer between receiving that dream job offer and actually starting work. From an employee’s point of view, it’s important to be aware of your new rights and realise that you can no longer be dismissed for no reason and to understand the grounds under which you might claim for unfair dismissal.
Honesty is the Best Policy
Employers are not trying to catch you out with their background checks. They are trying to protect their business against the risk of hiring someone who has a long criminal record, or who has left their previous four jobs under a cloud. This increased level of checking means that you are more likely than before to be caught out in any “white lies” which you may have included on your CV. This includes matters such as inflating your university degree grade, or stretching periods of employment to hide gaps. If you are found out, then your job offer is likely to be withdrawn on the basis of dishonesty. It’s simply not worth the risk to be untruthful.
