References don’t fit the bill any more – but casting the pre-employment vetting net wider is an ethical minefield
To his colleagues, Thomas O’Riordan appeared to have it all. As a high-flying City lawyer, he had glided from academic excellence – a first from Oxford and a masters at Harvard – into a career taking in senior roles at companies such as Nomura, Sumitomo Finance and the Republic National Bank of New York.
There was only one problem: O’Riordan’s academic record was entirely fictitious, a fact that only came to light when he applied for a new role and happened to claim to have graduated in the same class as his interviewer. The 51-year-old barrister had never attended Oxford or Harvard and had even lied about his school, as well as his membership of the Bar in New York and Ireland. O’Riordan has been suspended from practice for three years, but the more pertinent issue is how the international law firm where he worked as a partner for three years was taken in.
CV fraud, say the experts, is prevalent and rising. “Around 63 per cent of the CVs we check contain anomalies, and the main ones relate to education,” says Steve Girdler, managing director EMEA of HireRight, which specialises in background screening. In a competitive job market, he says, individuals are coached in “selling” themselves. “But in trying to ‘big up’ what they’ve done, they sometimes go too far.”
We may be at a watershed moment for pre-employment vetting. Its importance is unquestionable, but issues linger: who should take responsibility, what should be covered and how information should be handled. The shadow of blacklisting also looms large. After more than 3,200 names were found to be on a secret list used by major constructors, there has been widespread condemnation of the practice. But the issue may be more nuanced than many commentators have so far grasped.
The CIPD’s forthcoming Pre-Employment Checks – An Employer’s Guide points out that in a complex and often grey area, judgment is critical. Blacklisting is tightly defined in law and applies to situations where workers’ names are put on a list because of union membership or activities. Producing or using such lists in order to discriminate against individuals is unlawful, and the CIPD is currently investigating 19 members over allegations of blacklisting.
However, not all lists are illegal. Employers in the health, education and care sectors, for example, have a duty to protect vulnerable groups, which may lead them quite naturally to compile lists of unsuitable individuals. But even in such circumstances, the issue is a “legal minefield”, says Mike Emmott, CIPD adviser, employee relations.
And that’s without considering the off-the-record conversations about past and potential employees that are commonplace between executives and managers in many industries. While these may not be illegal, they bring their own problems. “Picking up the phone to someone who knows the candidate can perpetuate the injustices of the past and works against the interests of equality and diversity,” says personnel consultant Paula Grayson.
“You’ll either get your prejudices confirmed, or learn about someone’s ‘difficult’ reputation – and that reputation could be based on a chance encounter, a misunderstanding, or someone perhaps being passionate about their job and uncompromising on standards,” she says.
If someone is included on a list of any kind, Emmott emphasises, it must be based on evidence of actual wrongdoing and the individual concerned should be made aware and offered the opportunity to challenge the list. It can sometimes be a case of mistaken identity, he points out, while in other cases events that occurred several years previously may be irrelevant to a candidate’s suitability for a current job.
While a list based on the idea of “troublemakers” would, says the guidance, “be highly problematic”, an employer who failed to communicate to a potential new employer that an individual has been guilty of a transgression such as bullying could themselves be deemed negligent.
The issue goes far wider than legality. At stake in any pre-employment vetting process is the damage an unqualified or simply duplicitous employee could wreak on your organisation. “You wouldn’t buy a new house without having a proper professional survey, no matter how much you liked it,” says Girdler. “But just as what lurks behind the plaster and under the floorboards could come back and bite you, so the hidden truth about the background of an ostensibly ideal employee could deal a devastating blow to your corporate reputation months or years down the road.”
The irony in the O’Riordan case is that successive employers had praised his client skills – though that doesn’t save them from the ignominy of being a law firm that didn’t check its facts.
Legal precedent, globalisation, technology and the increasing complexity of how businesses operate are all combining to make vetting simultaneously tougher and more important than ever before. In outsourced contracts, it may be unclear which organisation is responsible for conducting checks. And then there’s social media: two-fifths of employers say they look at candidates’ online activity or profiles to inform recruitment decisions, according to the CIPD’s Social Media and Employee Voice report.
Given social media’s ubiquity, and the fact that more and more of what people post is in the public domain (Facebook relaxes its privacy settings on a regular basis), it’s unsurprising employers frequently use it to augment the view of a candidate formed at interview. But information gleaned this way should be treated with caution: it may not be accurate, there may be mitigating facts (someone else could have posted that embarrassing photograph) and, in any case, how someone behaves on the innately social platform of Facebook is probably no reflection of how well they do their job.
There are also the individual’s rights to consider – from both a legal and a moral perspective. It is unclear how far a “right to privacy” applies in respect of social media, but law and practice in other EU countries and the US are more restrictive, and the UK is likely to move further in that direction.
The CIPD guide advises distinguishing between “private” and “professional” social media and making candidates aware at an early stage that such searches may be conducted. Grayson adds: “My view as a responsible recruiter is that if something comes up on the application form that looks odd – a gap in employment, for example –it is not unreasonable to check on social media. But whereas we ask permission to check references and, say, to check with the Border Agency that someone is cleared to work in the UK, you don’t have to ask permission about social media because that information is in the public domain.
“If someone is racist or homophobic, you’re not necessarily going to find that out from the application form or at interview. So, particularly if you are recruiting for a public sector organisation, you are taking a big risk if you don’t double check.” Grayson cites the example of a charity that offers potential volunteers a choice between completing an application form and giving staff access to their social media postings.
Geoff Newman, CEO of RecruitmentGenius, a recruitment process outsource company, says he finds Twitter invaluable: “We look at the conversations people have and the connections they make and map those against their CVs.” But Emmott says recruiters should use social media searches for specific information, not as “a general trawling exercise”.
Amid the online chatter, the humble reference seems to have been left behind. For many organisations, they simply confirm that a candidate worked between specific dates. HR departments may advise managers to keep their counsel, fearing legal action if they offer a negative comment that can be shown to be incorrect. But a former employer could equally be exposed to a negligence claim if they fail to reveal information that could cause loss to a new employer.
The best way to view vetting, says Emmott, is as a way of screening in rather than out: “It is down to the recruiter to use their judgment rather than look for short cuts. There is a big temptation to look for reasons to say no, but you have to weigh the evidence.” Grayson agrees: “We need to be kinder to certain groups of people – like ex-offenders or former alcoholics – to help them break the cycle of reoffending or relapsing because they can’t find work.”
Best practice dictates telling candidates you will conduct checks and asking the kind of questions likely to elicit honesty. Newman says: “At second interview we tell people we are going to do a thorough background check, so this is their opportunity to tell us if there is something they haven’t revealed. You hear all sorts, from ‘I’m due in court next week after a fight in a bar’, to ‘I’m under a disciplinary for PPI fraud’, to ‘I’ve no right to work in the UK’. That approach is far more productive than a question like ‘Have you ever lied to your parents?’, which is what one well-known retailer asks. Everyone has lied to their parents, but everyone wants that job: what do they do?”
As a bare minimum, employers need to establish that potential staff members are who they say they are, that their work records stack up, that they are eligible to work and have no outstanding convictions. Specific sectors – the NHS, financial services and the security industry – also seek to protect themselves with their own sets of standards. But references, social media and “the grapevine” are of dubious value when it comes to making the right recruitment choices, believes Grayson.
“If you run a really good assessment centre, get people to fill out carefully crafted application forms (rather than rely on CVs) and ask interview questions based on ‘reflective practice’ or designed to test competencies, you are a long way down the road to getting the right people,” she says. “Over-reliance on other vetting tools is the mark of a lazy recruiter.”
✶ Pre-Employment Checks – An Employer’s Guide (available from 9 December) cipd.co.uk/hr-resources/guides/pre-employment-checks.aspx ✶ Recruiting within the Law – a one-day CIPD course: bit.ly/CIPDreclaw
14%
proportion of UK students who say they know someone who has bought or is considering buying a fake degree certificate
12%
year-on-year increase in the number of CVs containing dishonesty, according to HireRight
<1%
number of job applications that currently reveal details of a criminal record
67%
proportion of under-25s who believe lying
in a job application can be justified under
some circumstances
Good vetting practice
Base recruitment decisions on evidence
Be clear what risks you want to guard against –and why
Ensure negative evidence is based on fact, not simply suspicion, hearsay or someone’s opinion
Use social media searches to look for specific information and not as a trawling exercise
Ensure information accessed online is fully verifiable
Give individuals an opportunity to respond to material findings
Ensure that references are true, accurate and fair in substance
Show applicants information that has caused a job offer to be withdrawn
Do not use vetting as a proxy for rigorous recruitment processes