A change to the Data Protection Act has made it unlawful for an employer to require a potential employee to supply them with full details of their past criminal convictions by exercising their “subject access rights” under the Act.
Of course it is possible for employers to obtain information about an individual’s criminal records (when appropriate) through the Disclosure and Barring Service (formerly the Criminal Records Bureau). However, this regime limits the amount of information that will be supplied by leaving out “spent convictions”. For example, if an offence resulted in a sentence of more than two and a half years but less than four years in prison, then it is “spent” after seven years. There are, however, exceptions to this depending on the job applied for and the offence concerned.
However, despite these safeguarding measures, some employers have been requiring potential employees to make what is known as an “enforced subject access request” under the Data Protection Act before they will give them a job. Enforced subject access requests can only be made by the potential employee, but employers have been known to insist that employees must obtain one before giving them a job. These requests would reveal spent convictions which would not normally appear through the Disclosure and Barring Service search.
Section 56 of the Data Protection Act now means that it is a criminal offence for an employer to require an individual to exercise their right to obtain this information under the Act and pass that information to the employer.
A £5,000 fine in a Magistrates’ Court or an unlimited fine in the Crown Court will be imposed on employers who flout the new rules.
Justice Minister Simon Hughes said the new law was to ensure ex-offenders had a level playing field while trying to find a job. He believes those with minor convictions often face an unfair struggle and a job may be a crucial step in their rehabilitation process. The Ministry of Justice added that it is in society’s best interests for ex-offenders to be rehabilitated and integrate into the workplace.
The law change was initially proposed 17 years ago but it has taken many years to become law. The law change also protects someone who is entering into a contract for goods or services, so will apply to landlords and insurance companies.
Macks’ Employment Solicitors in Darlington are experienced in all aspects of employment law, including settlement agreements, unfair dismissal, and discrimination at work, and can also represent employers. Although our employment department is based in Darlington, meetings can be made convenient for you and arranged at our other offices in Middlesbrough or Redcar. To arrange an appointment with our employment solicitors in Darlington, you can call 01325 389800.
