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Potential pitfalls when enquiring about criminal records in recruitment

Employers will often seek to make enquiries about an applicant's criminal record as part of the recruitment process. But the legal basis of doing so is perhaps not as straight forward as many employers would hope. This note covers some of the issues that can arise when enquiries are made about an applicant's criminal background.

For an analysis of whether employers can refuse to employ candidates with criminal records and what can be done if an employee acquires a criminal record during employment, please see my previous blog post on the topic.

 

1.    Surely employers can just ask an applicant about their criminal record?

On the face of it, asking an applicant whether they have previous convictions might be the easiest way of finding out about their criminal record. But relying upon voluntary disclosure does have its drawbacks, some being more obvious than others.

  • In particular, an applicant is not legally obliged to disclose "spent" convictions (i.e. where an individual has been convicted, but has not re-offended during their rehabilitation period), unless the job in question is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ("Exceptions Order"). Common examples of excepted occupations that are covered by the Exceptions Order are individuals who work with children or vulnerable adults.
  • Additionally, it is worth bearing in mind that if an applicant inadvertently discloses the existence of a "spent" conviction (and the post is not covered by the Exceptions Order), an employer cannot act on this information. 
  • Unfortunately, some applicants may be less honest than others and claim to have a clean record (or fail to disclose a "spent" conviction when they are applying for an excepted occupation). There is therefore no guarantee in the truth of an answer and, unless the employer is going to carry out a DBS check (which it may not be legally entitled to do), there will be no way of verifying this information. 

2.    Is there anything else that employers ought to be aware of?

Yes - employers should ensure that any background checks on applicants are compliant with the provisions of the Data Protection Act 1998 ("the DPA").

Information about the commission, or alleged commission, of a criminal offence is sensitive personal data for the purposes of the DPA. Before an employer can undertake any processing (i.e. obtaining, recording or using information about a criminal conviction), it will need to be satisfied that certain conditions are met. These conditions are set out in further detail in the schedules to the DPA. By way of example only, the conditions include where processing data is necessary for compliance with a legal obligation and to select safe and competent workers.

Employers should also be aware of the eight data protection principles in the DPA (which are beyond the scope of this blog post), but they include that processing should be adequate, relevant and not excessive. The Information Commissioner's Employment Practices Code provides good practice recommendations on pre-employment vetting that is helpful here. The Code recommends that employers should make it clear early in the recruitment process if vetting will take place, how it will be conducted and leave any vetting until as late as is practicable (for example, to subject only the successful candidate to comprehensive vetting, rather than all potential applicants).

Supplementary guidance to the Code suggests that information on criminal convictions should only be sought if it is relevant to the job in question. In particular, it recommends that the same questions should not necessarily be asked of all applicants. Instead, questions should be designed to obtain no more than the information actually needed and applicants should not be led to believe that they must disclose "spent" convictions if they are not legally obliged to.

3.    Can employers require applicants to obtain copies of their criminal record by way of a subject access request?

Subject access requests are often used by individuals who want to see a copy of the information that an organisation holds about them. However, subject access requests can also be used, in theory, by an employer to obtain information about an applicant's criminal convictions. The practice of making it a condition of employment for applicants (or employees) to obtain a copy of their criminal records by means of a subject access request is known as enforced subject access.

Not only does the Information Commissioner advise against this, but from 10 March 2015 it will be a criminal offence under the DPA for an employer to require applicants (or employees) to make a subject access request for their criminal record information and supply it to the employer in connection with their recruitment (or continued employment, as it may be).

Breach of this provision risks criminal prosecution, a criminal record and an unlimited fine in England and Wales. It may seem ironic for an employer to face criminal prosecution for seeking information about an applicant's (or employee's) criminal record, but a wise employer would ensure that any practice of enforced subject access is put to a stop.

In the forthcoming months there is likely to be much press interest in enforced subject access requests and employers should not underestimate the reputational damage that could result if the practice is continued. It is therefore recommended that employers review their current approach to obtaining information about criminal records and adjust any approach which is likely to fall foul of the DPA.  Application forms and employment contracts (amongst other documents) may need to be revised.

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