There is nothing to prevent an employer from asking prospective employees about their criminal record history during the recruitment process, although ideally, this should be done once a successful applicant has been chosen and the employer wishes to offer employment subject to satisfactory background checks in order to ensure compliance with the Data Protection Act 1988. Although voluntary disclosure might be the easiest way of asking about a person’s criminal record, the following should be borne in mind:
- While an employer may ask about a person’s criminal record, the applicant is entitled not to disclose spent convictions (unless the vacancies satisfy the Exceptions Order). If the vacancy is not covered by the Exceptions Order and the applicant inadvertently discloses the existence of spent convictions, the employer is not permitted to act on this information.
- There is no guarantee that the answers are honest and, unless the employer is going to carry out a DBS check (which they may not be legally entitled to do) there will be no way of verifying this information.
Enforced Subject Access
In theory, it would be possible for an employer to obtain relevant information through use of an individual’s right of access to personal data under section 7 of the Data Protection Act 1988. This is normally referred to as the individual making a subject access request. However, when an employer requires job applicants or employees to obtain a copy of their criminal records by means of a subject access request, as a condition of employment or continued employment, it is referred to as an enforced subject access. Since 10 March 2015 enforced subject access is a criminal offence under Section 56 of the Data Protection Act 1988 and so enforced subject access has been outlawed. Therefore, unless you want to find yourself the wrong side of the criminal record, enforced subject access is a no go area!
Undertaking Criminal Record Checks under the Disclosure and Barring Service (“DBS”)
The DBS provides employers and those organisations engaging volunteers in England and Wales with information to assist them in assessing the suitability of an individual for work in certain positions of trust, including work with children and vulnerable adults. The service is also available other professional, licensing and regulatory bodies whose volunteers, employees and licensees are not necessarily in direct contact with the vulnerable, but who still need to uphold the high standards of professional performance. To be eligible for a standard or enhanced DBS check, the role must be listed in the Exceptions Order. The DBS has also produced a guide on which roles are eligible for checks.