It is not uncommon for employers to ask employees and job applicants whether they have a criminal record or social security contribution record, or ask them to complete a request form for access to information held on police computers, under the 1984 Data Protection Act. This form, when signed by the individual, may be sent to the Metropolitan Police, which would then be able to process a Criminal Convictions Certificate.
This practice, known as “enforced subject access”, will soon be made unlawful by section 56 of the Data Protection Act 1998. This states that it is an offence to require an individual to provide a record obtained by virtue of that individual’s right of access, where the information is required in connection with recruitment or employment or any contract for the provision of services and where it would reveal details of criminal convictions or cautions or social security matters.
Central Criminal Records Agency
The practice of enforced subject access will not be made illegal until Part V of the Police Act 1997 comes into force, which is not anticipated until summer next year. This legislation deals with the establishment of a Central Criminal Records Agency. Employers will then be able directly to submit requests for information on criminal convictions to the agency. The criminal record certificate received will apparently disclose details of convictions, including spent convictions, and cautions.
The level of information employers will be able to access will depend on the nature of the individual’s job. Employers will also be required to notify the individual, before submitting the request for information to the agency, and the individual may, therefore, withdraw their application for employment at that stage.
Current position
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
Employers may continue to ask employees to disclose information relating to unspent criminal convictions, whether or not it is relevant to the actual work they will perform. If it is subsequently disclosed to the employer that an employee misrepresented the position either before or during employment, an employer can consider disciplining the employee and, if the matter is sufficiently serious it may consider dismissal. If the employer is a public body, the implications of the Human Rights Act right to respect for private life may have an impact on whether it is fair to request the information from the employee or, if relevant, subject the employee to disciplinary action.
Without any authority on this point at the moment, it is believed likely that the employer’s need to have the information, in order to have trust and confidence in its staff, will outweigh the employee’s right to respect to private life if misrepresentation has occurred.
