From 1st December 2014, it will be a criminal offence for employers to require employees, or job applicants, to provide details of their criminal records by making an enforced data subject access request. Although this practice is discouraged by the Information Commissioner (ICO), employers have been able to ask employees or job applicants to make a subject access request to the police, in order to obtain details of their criminal convictions.

Employers may want information about the criminal records of job applicants, or employees for various reasons. Employers cannot apply themselves for criminal records checks on employees or job applicants, except in specific circumstances. These are primarily where a person will be working with children or vulnerable adults, or in specific regulated sectors, in which case the employer can, and in some cases, must get information on the person’s criminal history. One way of obtaining such information has been to require an individual to make an “enforced” subject access request under the Data Protection Act 1998, in order to get a copy of their own criminal record and make it a precondition of employment. This practice is at odds with the right to privacy and the rehabilitation of offenders, so enforced subject access has long been a contentious issue.

Going forward, any employer convicted of the offence will be liable to a fine of £5,000 in the Magistrates’ Court, or an unlimited fine in the Crown Court. The ICO has indicated that it intends to prosecute those who continue to enforce subject access requests in an effort to stamp out this practice.

Why the New Rules?

The core issue is that subject access requests provide far more information than an applicant is legally required to disclose. Applicants do not have to give information about “spent” convictions – i.e. where a certain period of time has elapsed since the conviction without the perpetrator re-offending. A spent conviction is “wiped” from an individual’s criminal record and he or she is entitled to hold themselves out as someone who has never been the subject of that conviction.

Enforced subject access requests ride roughshod over these boundaries. The response to a request will show spent convictions as well as live ones, and will also show police reprimands, warnings and cautions. While it is unlawful to refuse to employ someone because of a spent conviction, there is no specific legal remedy for anyone who is forced to reveal their full criminal history and then refused employment because of information disclosed. The ICO has called enforced subject access an “unsavoury practice” that undermines the rehabilitation of offenders.

Public debate about whether professional footballer Ched Evans should return to his job as a professional footballer, following his release from prison for rape, provides a topical example of a wider problem. Over 9.2 million people were known to the police with a record on the police national computer in 2009/10: around 15% of the UK population. Research by the CIPD found that being in employment is the single most important factor in reducing reoffending.

What is worth taking from the majority of employers’ experience of employing former convicts, however, is that the majority of the time, negative perceptions are not backed up by actual experience. The low employment rate amongst former offenders is undoubtedly a direct cost to the public purse in respect of jobseeker’s allowance, but also in respect of increased indirect costs by a higher level of reoffending. Ex-offenders who had a job to go to on their release from prison had significantly lower reoffending rates.

What does this mean for Employers?

Employers should, therefore, urgently review their recruitment practices and standard documents, particularly those which make employment subject to the production of a clean criminal record.

An option is simply to ask applicants to disclose their criminal records voluntarily. Employers should explain to individuals that they do not need to disclose spent convictions – although there is no certainty they will provide accurate information. The real question is whether it serves any benefit to do so. We would advise that it is rarely relevant, and should be avoided wherever possible.

The new law does not, however, prevent such access requests where the record is required by law, or is justified in the public interest. If you are thinking of still using enforced subject access, you would be sensible to seek professional opinion about your employment sector.

Areas that may need to be considered include:

  • recruitment advertising;
  • job and person specifications;
  • terms and conditions of employment;
  • employment application forms;
  • data retention;

Please speak with our Consultants if you think you do need to be able to continue with such access request, or believe that you need to know about criminal history for specific jobs or generally.