The way to avoid negligent hiring and the possibility of a resultant expensive lawsuit is to carefully screen every new employee. Like all other employers, you have a duty of care to your employees and if any individual sustains injury or violence through the foreseeable acts of another employee, you have failed in that duty and could face a stiff fine or compensation claim.

All employers are expected to employ reasonable care to determine the fitness of a job applicant for the position being filled. The term ‘reasonable care’ is used widely in legislation of various kinds worldwide and is open to a great deal of interpretation. Generally it will depend on circumstances, and a person regarded fit to work as a barman may not be fit to work with young children as a teacher. It is you, as the employer, to decide what ‘reasonable care’ means in each individual circumstance, and what constitutes negligent hiring may be dependant upon these circumstances, as will whether or not the steps taken to avoid negligent hiring were or were not ‘reasonable’.

There are, however, obvious cases of negligent hiring. Let’s assume, for example, that you are hiring an office clerk and you have someone with a great resume and lots of experience in office work. Ideal for the position, in fact, and with an exemplary attendance record. Your personnel manager is very impressed with him during the interview, so you decide to give him the job and forego the reference checks. You are desperate and the position must be filled quickly. A week later he gets involved in an argument with another employee, loses his temper and causes serious injury.

When the case is investigated it transpires that he has lost several jobs due to his temper and getting involved in brawls in the workplace. You failed to check up the references provided, which proved to be fictitious. The only way this guy was going to get a job was to make up a resume and give non-existent references. You are guilty of negligent hiring, and the injured party can sue you for negligence.

On the other hand, if you had checked the references and they had been fine, and a criminal record check had come out negative, you would have taken ‘reasonable care’ and you would not have been liable.

Another reason for poor background checks resulting in negligent hiring is a high employee turnover. In such cases you may be overwhelmed and not able to carry out all the screening you should. If done properly, this could include checking up records such as driving records, verifying education status and the prospective employee’s past compensation record. Driving records, in particular, should be checked to avoid negligent hiring for a driving job. The screening should be suitable for the position available.

Your insurance company may hit you with large premium hikes if you fail to spot that an employee has a record of making insurance claims at every conceivable opportunity. The volume of background checks you have to carry out is not a defense if they have not been completed properly.

You should not have to be reminded how to avoid negligent hiring. It should be an inbuilt part of your hiring procedure and you should make it policy to carry out an employment background check or screening on every prospective employee. All references should be checked, and if there are several, at least the three most recent. A criminal record check should be carried out and if the position involves handling money, perhaps a credit reference check would be useful. You don’t want to tempt someone with a poor credit rating, or employ a bankrupt in a sensitive financial position.

Even if you wanted to do so, you would be liable in the event of theft or fraudulent checks being signed. This is not an unusual occurrence, and there are many recorded instances where proper employment screening would have avoided fraudulent transactions. In certain cases there may be other investigations to carry out, such as if you are hiring a surgeon or a solicitor you may check up with their professional bodies, but generally you will have taken reasonable care.

So long as you can show that you took reasonable care in trying to avoid negligent hiring, and that you carried out the necessary background checks, contacted references and can demonstrate that you made sure as far as you could that the employee had no previous criminal record, it is unlikely that any court would find you negligent.

Possibly the best way to avoid negligent hiring is to retain a professional employee background screening service. These services know just what checks need to be made for each type of employment, and if you do that you will have taken the ‘reasonable care’ required by law.