From 10 March 2015, employers that use enforced subject access requests to expose job applicants with criminal convictions will be committing a criminal offence.
Job applicants with criminal convictions
Is it lawful for an employer to ask a candidate if he or she has any criminal convictions?
The new rules prevent employers from obtaining wider information by accessing a person’s subject access request rights under the Data Protection Act 1998.
HR professionals need to be aware that the new restriction means that employers will be acting illegally if they require a job applicant or an employee to obtain records of their criminal history using subject access requests.The law also applies to a person providing services, such as a self-employed consultant or volunteer.
Susan Dennehy, employment law editor at XpertHR, said: “Some employers have been requiring individuals to provide copies of their police record by using an individual’s right to make subject access requests as a condition of employment. Known as enforced subject access requests, this has been able to disclose much more information than the employer may be entitled to, such as unspent as well as spent convictions.”
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She continued: “Employers can lawfully obtain criminal record information, if the job legally requires it, through the Disclosure and Barring Service using the normal statutory disclosure procedure. Not going through the proper channels will mean that employers will be guilty of a criminal offence and potentially face an unlimited fine.”
The Information Commissioner’s Office has published guidance on enforced subject access. It makes it clear that, although there is a defence if the requirement to provide the record is necessary by law or is in the public interest, employers will not be able to rely on the public-interest defence to argue that it was necessary to prevent or detect crime.
