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Mar 15

Posted by
Michelle Arkins

Criminal checks on potential new employees

Employers who carry out 'back-door' criminal record checks on potential candidates seeking employment with their company, can now face criminal charges.

There is a well-established lawful process for checking criminal records such as the DBS formerly known as a CRB check, but some rogue employers have tried to bypass that by demanding prospective employees use their rights under the Data Protection Act (DPA) to see information held about themselves.

This ‘Enforced Subject Access’ bypasses the legal criminal record check process, overriding safeguards that only allow for checks and disclosure of information appropriate to the role being applied for.
The Ministry of justice has, just this month outlawed this practice as and from the 10th of March 2015. “It is now a criminal offence under section 7 of the DPA to require an individual to make a “subject access request” to retrieve information about their convictions and cautions and provide that information to a person”

An individual applies for a position as a waiter at a restaurant, but is told that they cannot be offered the position until they provide a copy of their criminal record. The employer states that they must make a subject access request in order to gain this information and they will only be appointed if it is supplied. The employer will have committed an offence under subsection 56(1) (a) of the DPA Enforced Access Employer Requests

An individual or employer who requires someone to make a subject access request is committing a criminal offence. The request alone is now an offence. It is now time to ensure your company changes any necessary prerequisites in the recruitment phase to ensure you are in compliance.

Committing such an offence in England and Wales can carry an unlimited fine, while in Scotland the fine can be unlimited if heard under solemn procedure or £10,000.In Northern Ireland, the maximum fine if convicted under a summary offence is £5000, or if convicted on indictment, the maximum fine is unlimited (unless expressly limited by statute)

Further information can be found on the ICO website using this link Code of Practice

It is now time to inspect your current recruitment policy and procedures and check you are not in breach of the aforementioned Act. Further information can be found on the ICO website.

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