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Government action on unlawful criminal record checks

From 10 March 2015 employers that force prospective employees to reveal certain of their spent convictions will themselves be committing a criminal offence.

This amendment to the Data Protection Act 1998 (“DPA”) is intended to ensure the protection of rehabilitated offenders and to ensure that those who have committed less serious crimes in the past have a greater chance of landing gainful employment and so become productive members of society.

There is a well-established process for checking criminal records, though some rogue employers have been demanding that applicants use their own rights under the DPA to obtain information held about themselves in relation to past offences. So in effect this has been a loophole in the legislation, symbiotically exploited by unscrupulous employers making the demand of applicants in the first place and then facilitated by the very ex-offenders applying for the roles. Some reports have noted that this loophole seems to have been exploited in the security industry in particular.

The practice, sometimes referred to as enforced subject access, will per the above now be outlawed, though it must be noted some 17 years after the DPA was first passed into law. Simply then, this change will make it a criminal offence to require an individual to make a subject access request to obtain information about their own convictions and cautions.

Given the time taken to rectify the situation it is perhaps no surprise then that the new provisions are far from toothless. Any potential employer that tries to circumvent the Rehabilitation of Offenders Act by asking an applicant to carry out an enforced subject access request could now face a fine of up to £5,000 in a magistrates’ court or an unlimited financial penalty in the higher courts.

Conclusion

Employers should take note that the enforced subject access method is now illegal and so in only the formal criminal record check system should be used when undertaking such due diligence exercises on potential employees.

As always if I can provide you with any further assistance on queries relating to applicant background checking or any other issue, please do not hesitate to contact me for a free consultation on 0113 350 4030 or samira.cakali@scesolicitors.co.uk


Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here. 

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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