Data Protection – An important change to the law which potentially impacts every employer

This week, with effect from the 10^th March 2015, has seen the introduction of new Data Protection laws that outlaws “back door” criminal record checks on new employees.

Here at Gorvins we have seen a few instances of these in practice where a prospective employer makes a job available to a potential employee subject to the potential employee undertaking a “subject access request” in relation to their past criminal convictions and cautions. The prospective employee must then disclose the results of the “subject access request” to the prospective employer who in turn uses the results to make a final decision on whether or not to give the job to the individual concerned.

A “subject access request” is where any individual can require an organisation to disclose what information they hold on the individual making the request. In the scenario above these types of requests required by a prospective employer are known as “enforced subject access requests”.

Enforced subject access requests, bypass the well-established criminal record check process and the associated safeguards that protect individuals by only allowing checks and disclosure of information appropriate to the role being applied for, for example where working with children or vulnerable adults would require certain types of previous criminal offences to be disclosed for the safety of those children and vulnerable adults.

Whilst this practice is commonly linked to job applications, the law applies to any “enforced subject access request” which is required to be made before entering into a contract for goods, services or facilities and accordingly would cover organisations such as landlords and insurance companies.

Jonathan Bamford, the Information Commissioner’s Head of Strategic Liaison said:

“Enforced subject access request is a practice that, at its worse, costs people jobs. 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 and rehabilitation.

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.”

Accordingly, with effect from the 10^th March 2015 the practice of requiring an individual to make an enforced subject access request and disclose the results has been outlawed and is now a criminal offence on the party requiring the enforced subject access request to be made with potentially unlimited fines if prosecuted in England and Wales.

If you need any further advice as an employer or organisation that has every carried out this practice, then please do not hesitate to contact Christian Mancier on 0161 930 5151