Employers who force potential workers to request a criminal record check on themselves face prosecution after a change in UK law that comes into effect on Tuesday, 10 March.
New regulations – to be enforced by data privacy watchdogs at the Information Commissioner's Office (ICO) – will outlaw so-called "back door" criminal record checks.
Despite a well-established lawful process for checking criminal records, some unscrupulous employers have tried to circumvent those rules, demanding prospective employees use their rights under the Data Protection Act (DPA) to obtain information on themselves by making a subject access request.
This "enforced subject access" bypasses the legal criminal record check process, overriding safeguards that only allow for checks and disclosure of information appropriate to the role being applied for.
It also rides roughshod over rules about wiping the slate clean about less serious offences in the distant past.
The practice will be outlawed from the 10 March, when a provision in the DPA is finally implemented after a 17 year wait. This makes it a criminal offence (under section 56 of the DPA) to require an individual to make a subject access request to get information about their convictions and police cautions.
The law change applies to any enforced subject access request required before entering into a contract for goods, facilities or services. This means the legislative change also affects landlords or insurance companies, for example.
Subject access request can include cautions and spent convictions which may not be shared in a formal criminal record check because they are not relevant to a particular check.
Jonathan Bamford, the ICO’s head of strategic liaison, said: “We have a clear system in this country for employers to make criminal record checks, with checks and balances to ensure that an appropriate amount of detail is provided based on the job being applied for."
"Circumventing that process means a minor offence someone committed twenty years ago could stop them getting a job now. This undermines legal safeguards around rehabilitation," he added. "Enforced subject access request is a practice that, at its worst, costs people jobs."
Bamford hailed the change in UK law, which comes at the end of a long campaign. “I’ve been involved in negotiations to see this practice outlawed for almost 20 years. It’s been a long road, but this law change is a sensible and proportionate step that stops people’s rights being abused and laws protecting them undermined,” he said.
Information for employers on making criminal record checks can be found here. ®