Pre-Employment Checks
North Lanarkshire Council · 18 May 2023
Back to Audit and Scrutiny Panel — 18 May 2023 and its agenda
Text extracted from the council's PDF. Layout and reading order may differ from the original.
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North Lanarkshire Council Report Audit and Scrutiny Panel Does this report require to be approved? ☐ Yes ☒ No Ref: FW Date 18/05/23 Pre-Employment Checks From Fiona Whittaker, Chief Officer People Resources E-mail whittakerf@northlan.gov.uk Telephone 1. Background 1.1 As part of a wider audit investigation process concluded in April 2023, it has been established that the Council re-employed an individual who had previously been suspended during an investigation in 2015, relating to the misappropriation of funds within a school environment. Following re-employment in 2018, this employee was subsequently found to be involved in a similar matter, and based on the evidence found, is likely to have been disciplined, however the employee declined to be involved in the investigation and resigned before this could be completed. Executive Summary Audit & Scrutiny Panel has requested an update on how the Council plans to strengthen pre-employment checks, or otherwise address the issue highlighted in the recent audit report regarding the Council re-employing someone who has previously left or been dismissed during investigation. The service has now considered a range of options for addressing the issues highlighted, whilst taking account of relevant legislation which applies in this space including employment, equalities and other data protection legislation, particularly as it applies to the rights of individuals. Recommendations It is recommended that the panel: 1) Note the actions which are now underway to identify where an employee has previously been employed by the Council and to undertake the relevant checks which can lawfully be used to assess their suitability or otherwise to be re-employed in a similar or other capacity. The Plan for North Lanarkshire Priority Improve North Lanarkshire's resource base Ambition statement (23) Build a workforce for the future capable of delivering on our priorities and shared ambition
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1.2 A key part of the audit finding was that a recommendation from 2015, to implement changes in the Council’s recruitment process to identify employees who had previously been employed by the Council and were subject to disciplinary action had not been actioned at that time. 1.3 This report sets out the actions which are now proposed to be taken by the People Resources service to enable hiring managers to identify where an employee has been previously employed by the Council, and to allow them to check if there are any flags on the persons record which would preclude them from being employed again in the future. 1.4 This is with an understanding that the Council must do this in a way which operates within the legal frameworks which govern the holding and use of employee data including the data protection regulations and the Equality Act 2010. 2. Report 2.1 Under data protection regulations, employers can keep the following data about their employees without their permission: • Name, address, date of birth • sex • education and qualifications • work experience • National Insurance number • tax code • emergency contact details • employment history with the organisation • employment terms and conditions (eg pay, hours of work, holidays, benefits, absence) • any accidents connected with work • any training taken • any disciplinary action taken 2.2 Over and above this an employee also has the right to be told: • what records are kept and how they’re used • the confidentiality of the records • how these records can help with their training and development at work If an employee asks to find out what data is kept on them, the employer will have 30 days to provide a copy of the requested information. 2.3 The Data Protection Act 2018 (DPA) tightened the law to deal with data storage and incorporated the agreed provisions of the EU General Data Protection Regulation (GDPR). It applies to most HR records, whether held in paper, or digital format.
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2.4 Importantly, data must not be kept any longer than is necessary for a legitimate purpose and it must not be excessive. The emphasis is on the employer (the data controller) to have systems in place to determine how long the data should be retained and when records should be destroyed. The DPA and GDPR do not expressly set out any specific minimum or maximum retention periods. 2.5 Additionally, there are many rules about record retention in the public sector. The Freedom of Information Act 2000 obliges authorities to maintain records in line with a code of practice on records management. 2.6 It should be noted that all employee data within the Council is stored on i-Trent and no records are held on paper. Subject to certain exceptions, employees have the right to access this data and the Council must ensure that the data is accurate and seek the employee’s permission before releasing it. Employees who leave the Council are also entitled to access tis information under a subject access request and the rules and regulations which underpin this. 2.4 Due to the fact that certain documents such as employment contracts, accident record books and other personnel records may be needed outside the DPA in a legal action, the Council has specific retention schedules for leavers which are currently 6 years unless the post is subject to disclosure (for example in Health & Social Care) where the retention period is 25 years. This is in line with the Council’s corporate policy on data retention. 2.5 It should be noted that when an employee is issued with a warning under the disciplinary procedure, the details of this are only held for the period of the warning - so 18 months for example. Holding data on more punitive action such as suspension or dismissal for conduct, capability, or some other substantive reason (SOSR) is lawful and is retained against the employees record for the full retention time set out above. 2.3 Audit & Scrutiny should also be aware that where an employee resigns in the course of an investigation, and that investigation has not formally concluded that the employee be suspended or dismissed due to inappropriate behaviour, this will not be captured on the employees record in line with the retention schedule. 2.4 In the case of the previous employee involved in the School A investigation, the employee had been previously suspended pending investigation, so this information would have been available to the hiring manger if the necessary changes had been applied. Planned actions 2.6 With regards to pre-employment checks, the People Resources service is now proposing to implement the following changes in the recruitment process: • A question will immediately be added to the application form to ask if the applicant has worked for the Council before, in what capacity and over which dates. • Hiring manager guidance will be updated to reflect this change and for managers to probe further at interview on the role they undertook, performance and timings etc. • Managers and where relevant HR Business Partners will be asked to contact People Resources for more information on any
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candidate who has worked with the Council, prior to making an employment offer to check if there are any flags. Informal conversations may also be pursued with previous known line managers. • HR Business Partners will be updated to ensure that managers are adhering to the change in pre-employment checks for previously employed candidates. 2.7 It is also believed that this approach will act as a deterrent to stop people applying as if they have previously been subject to disciplinary action, as they are not likely to be aware of what information is held by the Council on their previous employment. 2.8 People resources will also continue to monitor requests for this type of information as part of the hiring process. 3. Measures of success 3.1 The measures of success will include: - Reduced likelihood of the Council re-employing staff who have previously been subject to disciplinary action or are otherwise deemed unfit to hold a role within a public sector organisation. 4. Supporting documentation N/A Fiona Whittaker Chief Officer People Resources
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5. Impacts 5.1 Public Sector Equality Duty and Fairer Scotland Duty Does the report contain information that has an impact as a result of the Public Sector Equality Duty and/or Fairer Scotland Duty? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? If Yes, has an assessment been carried out and published on the council’s website? https://www.northlanarkshire.gov.uk/your-community/equalities/equality- and-fairer-scotland-duty-impact-assessments Yes ☐ No ☐ 5.2 Financial impact Does the report contain any financial impacts? Yes ☐ No ☒ If Yes, have all relevant financial impacts have been discussed and agreed with Finance? Yes ☐ No ☐ If Yes, please provide a brief summary of the impact? 5.3 HR policy impact Does the report contain any HR policy or procedure impacts? Yes ☒ No ☐ If Yes, have all relevant HR impacts have been discussed and agreed with People Resources? Yes ☒ No ☐ If Yes, please provide a brief summary of the impact? Recruitment procedures and policies will need to be updated. 5.4 Legal impact Does the report contain any legal impacts (such as general legal matters, statutory considerations (including employment law considerations), or new legislation)? Yes ☐ No ☒ If Yes, have all relevant legal impacts have been discussed and agreed with Legal and Democratic? Yes ☐ No ☐ If Yes, please provide a brief summary of the impact? 5.5 Data protection impact Does the report / project / practice contain or involve the processing of personal data? Yes ☐ No ☒ If Yes, is the processing of this personal data likely to result in a high risk to the data subject? Yes ☐ No ☐ If Yes, has a Data Protection Impact Assessment (DPIA) been carried out and e- mailed to dataprotection@northlan.gov.uk Yes ☐ No ☐ 5.6 Technology / Digital impact Does the report contain information that has an impact on either technology, digital transformation, service redesign / business change processes, data management, or connectivity / broadband / Wi-Fi?
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Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? Where the impact identifies a requirement for significant technology change, has an assessment been carried out (or is scheduled to be carried out) by the Enterprise Architecture Governance Group (EAGG)? Yes ☐ No ☐ 5.7 Environmental / Carbon impact Does the report / project / practice contain information that has an impact on any environmental or carbon matters? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? 5.8 Communications impact Does the report contain any information that has an impact on the council’s communications activities? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? 5.9 Risk impact Is there a risk impact? Yes ☒ No ☐ If Yes, please provide a brief summary of the key risks and potential impacts, highlighting where the risk(s) are assessed and recorded (e.g. Corporate or Service or Project Risk Registers), and how they are managed? The proposed changes will meet the recommendations set out in the Audit report to improve controls and reduce risk to the Council. 5.10 Armed Forces Covenant Duty Does the report require to take due regard of the Armed Forces Covenant Duty (i.e. does it relate to healthcare, housing, or education services for in-Service or ex- Service personnel, or their families, or widow(er)s)? Yes ☐ No ☒ If Yes, please provide a brief summary of the provision which has been made to ensure there has been appropriate consideration of the particular needs of the Armed Forces community to make sure that they do not face disadvantage compared to other citizens in the provision of public services.