If you are currently using enforced subject access requests to gather information about candidates during your recruitment exercises, you are committing a criminal offence. The new law came into force on 10th March 2015, and it’s likely that many businesses will need to update their practices to ensure that they’re compliant.
Previously, it was legally acceptable for employers to require job applicants to provide details of their criminal history through subject access requests, under the provisions outlined in the Data Protection Act 1998.
Employment law editor at XpertHR, Susan Dennehy, commented: ‘Some employers have been requiring individuals to provide copies of their police record by using an individual’s right to make subject access requests as a condition of employment. Known as enforced subject access requests, this has been able to disclose much more information than the employer may be entitled to, such as unspent as well as spent convictions.’
She added: ‘Employers can lawfully obtain criminal record information, if the job legally requires it, through the Disclosure and Barring Service using the normal statutory disclosure procedure. Not going through the proper channels will mean that employers will be guilty of a criminal offence and potentially face an unlimited fine.’
If you currently use this practice within your business, you need to cease such activity immediately. Though there will sometimes be a valid reason why you need to vet your candidates to check out any potential criminal activity in their pasts, it’s vital that you do so in accordance with the law.
Give us a call to discuss the other options that might be available to you, and where you stand from a legal point of view. We’d be delighted to help you get your recruitment procedures right.