At Ridouts, we have recently noticed that staff recruitment records have been a key area of focus for CQC inspectors particularly in relation to agency workers and workers from overseas. The CQC’s report titled, ‘The state of health care and adult social care in England 2022/23’ (published on 20 October 2023) highlighted concerns in relation to, “…a growing trend of unethical international recruitment practices” and stated that it had made referrals for, “…modern slavery, labour exploitation and international visas”. This is likely to be one of the reasons behind the CQC’s focus on staff recruitment records.
What Does The Legislation Say?
Regulation 19 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“2014 Regulations”) sets out the requirement for providers to employ ‘fit and proper’ staff who are able to provide care and treatment appropriate to their role. Schedule 3 of the 2014 Regulations sets out information that providers are required to have in relation to their employees and Schedule 4, Part 2 of the 2014 Regulations sets out the ‘good character’ test.
When assessing compliance with the 2014 Regulations, the CQC expects providers to demonstrate that they have robust recruitment procedures in place.
What Does The Legislation Mean In Practice?
Care providers have a duty to ensure that the staff they employ in their service are ‘fit and proper’. Providers should therefore have a clear recruitment policy in place which details the relevant checks and the steps that must be taken before a person commences employment in their service.
A summary of the checks that need to be conducted are detailed below:
- Proof of identity.
- Disclosure and Barring Service (DBS) check.
- Documentary evidence of professional qualifications and professional registration to ensure that staff are competent and have the skills required necessary for their role.
- Satisfactory evidence of conduct in previous employment i.e reference checks.
- ‘Right to Work’ checks.
- A full employment history with a satisfactory written explanation of any gaps in employment.
- Satisfactory information about any physical or mental health conditions which are relevant to the person’s capability, after reasonable adjustments are made, to properly perform tasks.
The information set out above must be confirmed before a person starts employment and relevant records should be kept.
Staff employed must be of good character and the CQC expects providers to make every effort to gather all available information to confirm this. The processes followed are supposed to take account of a person’s honesty, trust, reliability and respect. Providers are also required to regularly review the fitness of employees and should respond to any concerns about a person’s fitness without delay.
What Have We Heard From Providers?
Providers have informed us that during CQC inspections, inspectors have been reviewing staff recruitment records with a fine toothcomb to see if the records contain any gaps. For overseas workers who are employed, inspectors are looking to see if the necessary ‘Right to Work’ checks have been completed and that any sponsorship requirements have been complied with.
One of the risks of modern slavery in the care sector relates to workers who are outsourced from agencies. During inspections, CQC inspectors have been asking providers how they are ensuring themselves that appropriate checks have been undertaken in relation to agency staff. With regards to agency staff, the CQC’s website sets out guidance for providers in relation to how to comply with Regulation 19(2) and states that, “Recruitment and/or checks on candidates may be carried out by a party other than the provider. In this case, providers must assure themselves that all checks are complete and satisfactory.” This means that recruitment agencies engaged by providers can carry out the relevant checks on staff. However, given that providers must ensure that checks are complete and satisfactory, providers who use agency workers should not take it for granted that the prescribed checks have been carried out the agency.
A possible way of mitigating risks in relation to this is for providers to use specific reputable employment agencies to source staff. Providers should also ensure that they have a formal contractual arrangement in place which puts the duty on the agency to carry out relevant checks in line with Home Office guidance. Another way for a provider to mitigate risk is to ask the agency if they can undertake spot checks of agency workers’ employment files to assure themselves that necessary checks have been undertaken. If an employment agency if not forthcoming with providing information to a provider this should set alarm bells ringing.
It is always a good idea for providers to ensure that they receive complete ‘Agency Profiles’ in respect of staff members before they commence a shift in their service. ‘Agency Profiles’ should outline key information relevant to the individual agency worker’s suitability to fulfil their role.
The Effects Of Not Getting It Right
If the CQC finds that a provider has not carried out the relevant employment checks, there are various implications that could arise from this. Providers could be in a position where they need to suspend or dismiss staff which in turn could create staffing shortages in a service. It is also likely to flag to the CQC that a service is high risk. This may lead to increased scrutiny or enforcement action from the CQC.
Although the CQC cannot prosecute for a breach of Regulation 19, if the CQC considers that a breach of Regulation 19 also breaches another regulation that carries offence clauses, it can move directly to prosecution without serving a Warning Notice. The CQC can also take regulatory action against a provider by using its civil powers to impose conditions, suspend a registration or cancel a registration.
Very often things are not recorded and there are gaps in records. This then leads inspectors to take the view that ‘if it’s not written, it didn’t happen’. To avoid criticism and subsequent enforcement action, it is important for providers to consider what Regulation 19 says and how this can be reflected in recruitment policies and execution of policies. Recruitment records should be accurate, up to date and reviewed regularly.
If providers would like help with or advice on how to deal with the CQC’s inspection process, Ridouts can help. Please contact our specialist team of solicitors on 0207 317 0340 or ask for a call back via the website.