Loophole Closed on Gaining Access to Criminal Records of Employees

Some employers try to circumvent the Disclosure and Barring route to assess whether an employee is suitable for a job by requiring the employee or volunteer to submit a subject access request and give the results about his/her criminal record to the employer. Some employers view this method as more advantageous as it is both cheaper (£10 maximum) and fuller details are revealed compared to a Disclosure and Barring return.

Illegal Pressure

From 10th March 2015, using that route is likely to result in a conviction and fine as it will be in breach of section 56 of the Data Protection Act. It will be illegal to require an individual or a third party to supply you with a relevant record or to produce a relevant record to you if that is in connection with the following:

  • the recruitment of another person as an employee;
  • the continued employment of another person:
  • any contract for the provision of services to him by
    another person.

The regulation is cast wide in that if you encourage or incentivize an individual to use his subject access right to obtain such information that will be an offence. For example, making a tentative offer of a job but first requiring to see the results of a subject access request will be illegal. The exception will be if another regulation permits the use of subject access information for such purposes.

Beware False Assumptions

While reading the above, you may have been thinking, “We don’t do that in any case”. Are you sure that none of your managers resort to such measures during recruitment? Do not assume but make it explicit to all your managers that such action is not acceptable. Explain what the acceptable way is to obtain such information.

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© 2014 HR Management Dimensions

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