Recruitment process – beware the new offence limiting compulsory checks on criminal records

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Recruitment process – beware the new offence limiting compulsory checks on criminal records

As of the 10th of March 2015, it is a criminal offence for an employer to compel a prospective employee to make a subject access request under the Data Protection Act 1998 to ascertain whether they have ever been convicted of a criminal offence. 
Enforced subject access requests have been used by prospective employers to access certain information about potential recruits from the Disclosure and Barring Service relating to criminal convictions that may not otherwise have been declared because, for example, those convictions are deemed to be spent. 

It is now an offence for an employer to require an individual to provide information from a subject access request as a condition of employment, except for circumstances where it is justified (which is likely to be limited). As well as a fine ranging from £5,000 to an unlimited sum, any prosecutions are likely to prompt adverse media coverage, potentially causing reputational damage.   
Take action now:
As an employer, you should ensure that offers of employment are not conditional on individuals providing evidence of a clean criminal record. There is nothing to stop you from asking prospective employees about their criminal record and hoping that they volunteer the information, but your application forms should state that candidates do not need to disclose details of spent convictions. Review the terminology of your application forms and offer letters to ensure your organisation does not breach this requirement.
The new offence does not prevent you from making checks where you are recruiting for specific roles which require Standard or Enhanced Checks from the Disclosure and Barring Service.


Abigail Maino, Solicitor, EmploymentFor more information on Employment law or related enquiries, contact Abigail Maino, Employment.

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Published: 10 Mar 2015

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