What happens if a temporary worker is unsuitable?
The Conduct Regulations under Regulation 20 places agencies and employment businesses under an obligation to act if they find out a work seeker is unsuitable. This obligation is slightly different for employment agencies (introducers of permanent candidates) and employment businesses (suppliers of temporary workers). The obligations are set out below:
Unsuitability of permanent candidates
If, within three months from the date of introduction of a work seeker to a hirer (probably the date the work seeker starts working for the client) you receive or obtain information which indicates that the work seeker is or may be unsuitable for that position you must inform the hirer without delay i.e. on the same day or the next business day if that is not reasonably practicable. For example if you take up a reference or otherwise hear of information that would make the candidate unsuitable you should inform the hirer.
Unsuitability of Temporary Workers
Where you receive or obtain information during the course of an assignment that gives you reasonable grounds to believe that a worker supplied to a hirer is unsuitable (see above) you must inform the hirer without delay and end the assignment.
If the information only indicates that the work seeker may be unsuitable but is insufficient to give you reasonable grounds to believe that s/he is in fact unsuitable you should commence such enquiries as are reasonably practicable and inform the hirer of the information received and the enquiries being made. If as a result of those enquiries you have reasonable grounds to believe s/he is unsuitable you must then without delay inform the hirer and end the assignment.
Unsuitability and the Data Protection Act
The sort of information that might indicate a worker is unsuitable will depend on the circumstances but may be a relevant criminal conviction that should have been disclosed; qualifications found to be false; or a medical condition that means the worker may either be at risk by performing the work or s/he may be placing others at risk. It should be information that would mean you would not have put the work seeker forward in the first place, and must be more than just gossip.
It is likely that processing of data to comply with regulation 20 will have a lawful basis under the General Data Protection Regulation (GDPR). Article 6 of the GDPR sets out that processing will be lawful based on 6 possible bases, including where it is “necessary for compliance with a legal obligation to which the controller is subject” and where it is “necessary for the purposes of the legitimate interests pursued by the controller or a third party” (although there are exceptions to the latter of these). It is likely that as you are processing the data to comply with the Conduct Regulations this will be a sufficient legal obligation, but there is also a point to be made that the processing of this data is in your client’s legitimate interest as it will affect their engagement of the individual.
However you should be careful to check the accuracy of any information you receive as the communication of any false or misleading information prejudicial to the worker could give rise to a possible claim for damages for defamation. You should therefore ensure that if this situation does arise that you do not disclose more information to the client than is necessary. It may be sufficient where you have supplied a temporary worker to simply state that “the worker is being withdrawn pending” investigations into their suitability without stating what the allegations are.
Since supplying a temporary worker to a client I have discovered information that leads me to believe that the candidate is unsuitable for this position. What should I do?
Where you receive or obtain information during the course of an assignment that gives you reasonable grounds to believe that a worker supplied to a hirer is unsuitable you must inform the hirer without delay and end the assignment.
If the information only indicates that the work seeker may be unsuitable but is insufficient to give you reasonable grounds to believe that s/he is in fact unsuitable you should commence such enquiries as are reasonably practicable and inform the hirer of the information received and the enquiries being made. If as a result of those enquiries you have reasonable grounds to believe s/he is unsuitable you must then without delay inform the hirer and end the assignment.