In the UK it can now be a criminal offence for an employer to require a job applicant to make a “data subject access request” to show whether or not they had a criminal record.

Background

UK legislation seeks to encourage the rehabilitation of people convicted of a crime. To this end offenders (subject to the exception below) do not have to disclose to potential employers their past convictions after a set period of time, provided they have not re-offended.

Until recently, employers could get round this by requiring the prospective employee to make a data subject access request on his own account to the UK Government’s records agency (the “Disclosure and Barring Service”). These requests would result in disclosure of more information (including old convictions) than the employee was actually required to make to the employer. This was seen as a loophole in the system acting against the rehabilitation objective.

Criminal offence

It has now become a criminal offence of itself for an employer to require an employee to make such a subject access request as a condition of the employment unless the exception below applies. The fine on the employer for such an offence can be unlimited.

Exception

Note that for certain, sensitive roles (such as working with children, vulnerable adults or those with high levels of public responsibility – doctors, lawyers, bankers etc.) employers can apply direct to the Disclosure and Barring Service for a standard or an enhanced criminal record check. This has not changed.

Globally

The rules on criminal record background checks vary considerably around the world. Close attention to local rules is essential.