Enforced subject access unlawful from 10 March 2015
Enforced subject access under section 56 of the Data Protection Act 1998 (where any person requires another to obtain a copy of their own criminal records via a subject access request and disclose it as a pre-condition of providing goods, services, facilities or employment became a criminal offence on 10 March 2015, punishable with an unlimited fine in England and Wales. The practice is already officially frowned upon, with the Information Commissioners' Employment Practices Code advising against it and the Disclosure and Barring Service stating that it is not good practice, as the subject access request can disclose irrelevant spent convictions.
Employers who wish to carry out background checks on employees or job applicants should use the criminal records disclosure regime operated by the Disclosure and Barring Service (in England and Wales), Disclosure Scotland or Access Northern Ireland.
April 2015 immigration changes
April is a key month for changes to the UK's immigration rules, as for UK employment law updates. Next month is no different with the introduction of various immigration changes relating to the visa process for overseas applicants, the business visitor rules, the Tier 2 General immigration cap and Tier 2 minimum salaries.
Senior managers, certification and accountability – where are we now?
On 3 March 2015, the Economic Secretary to the Treasury, Andrea Leadsom announced that the proposed rules to regulate conduct in the banking sector will come into force on 7 March 2016. The Senior Managers and Certification Regime (SM&CR) will apply to UK branches of foreign (non-EEA) banks as well as UK headquartered banks, building societies, credit unions and PRA-regulated investment firms.
The new criminal offence relating to decisions causing a financial institution to fail could apply to decisions taken by senior managers in UK banks, building societies and PRA-regulated investment firms—but not credit unions or any foreign institution—on or after 7 March 2016.
The new regime aims to strengthen the accountability of bank senior management and to raise standards of individual conduct in the banking sector. The proposals are far-reaching, with three strands:
- A revised Senior Managers Regime (SMR)
- A new Certification Regime for a range of roles within a firm
- New Conduct Rules across a wide strata of firm employees.
All fines and maximum fines of £5000 are to become unlimited in the magistrates court
From 12 March, an offence committed which would previously resulted in a fine of £5000 or more have become unlimited. The result is that higher fines for particular offences could now be imposed by magistrates. This expansion in the range of magistrates' sentencing powers should be taken on board by companies and their directors. Fines imposed on employers for smoking offences, failing to keep National Minimum Wage records and failing to submit a form HR1 where 20 or more employees are to be made redundant in 90 days may now be much higher.