There are various situations in which businesses legitimately want to check a job applicant’s criminal record before offering them employment. Here in England, the Disclosure and Barring Service (otherwise known as the DBS) is responsible for processing employers’ requests for such information. Depending on the nature of the role for which the individual has applied, the DBS scheme allows employers to request a prescribed level of information relating to a person’s criminal record.
Back-door checks
The problem is that some employers have found that they are not entitled to request information from the DBS; the nature of their business and the roles for which they are recruiting do not fall within the DBS scheme. This has had the undesirable effect of encouraging some businesses to look for ways in which they can get around the normal rules, leading to the practice of so-called ‘back-door’ criminal record checks.
These ‘back-door’ checks involve the exploitation of our right, as individuals, to request a copy of our own criminal record from our local police service. Some employers have adopted the practice of insisting that job applicants apply for copies of their own criminal record and then disclose the information to the employer. For some time now, the Information Commissioner’s Office (the body responsible for enforcing data protection laws in the UK) has been concerned about this practice. The ICO sees it as a means by which less scrupulous employers can side-step the safeguards included in the DBS system, allowing employers to access (and take account of) ‘spent’ convictions and other information that they never should have seen. The upshot is that former offenders are denied the right to put ‘spent’ convictions behind them and move on with their lives.
A change in the law
With effect from 10th March 2015, it has now become a criminal offence to require a job applicant (or indeed an employee) to obtain a copy of their own criminal record for the purposes of handing it over to their employer or prospective employer. So if you have used this technique in the past, I’m afraid that it’s time to stop.
Those businesses that still wish to run criminal record checks will need to consider whether they can make valid requests under the DBS scheme itself. If the role for which the individual is applying is not one to which the DBS scheme applies, then the employer may want to consider seeking what is called ‘basic disclosure’ from an organisation called ‘Disclosure Scotland’. Scotland has a different disclosure regime from the one that we have here in England. There is greater freedom to request criminal records information north of the border, yet the data to which the DBS and Disclosure Scotland have access is essentially the same. Therefore, whilst it might seem rather odd, many English businesses use Disclosure Scotland to obtain criminal records information precisely because of their more flexible arrangements.
Employers beware!
Of course, it is important to bear in mind that just because you can get your hands on information relating to a job applicant’s criminal convictions, that doesn’t mean that you are entitled lawfully to use it. As I have already hinted at, for most roles, you should ignore any ‘spent’ convictions when making recruitment decisions. Furthermore, it is important to remember that information relating to a person’s criminal record amounts to ‘sensitive personal data’ under the Data Protection Act 1998. This means that employers need to consider very carefully whether they are permitted to use such data, or whether they might unwittingly breach data protection laws simply by holding this information.
This is a complicated issue and the risks associated with getting it wrong have just become that bit greater. So if in doubt, businesses are well-advised to take legal advice in order to ensure that they stay on the right side of the law.