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Changes to Criminal Record Checks Delayed

Burnetts' information law solicitor Natalie Ruane discusses changes to criminal record checks.

The Government has recently announced that the date of implementation of Section 56 of the Data Protection Act has been delayed from 1 December 2014. 

Section 56 makes it an offence for employers to require individuals to make “enforced” data subject access requests to provide standard or enhanced criminal records as a condition of their employment.  If a job role falls within the Rehabilitation of Offenders (Exceptions) Order 1975, an employer is entitled to apply to the Disclosure and Barring Service for a standard or enhanced criminal records check.  If the Exception Order does not apply the only other way to obtain such records has been to force an employee to make a Data Subject Access Request to the Disclosure and Barring Service for their criminal record and then require them to pass on the results to the employer.

The Exceptions Order only applies in certain circumstances.  It covers roles involving work with children or vulnerable adults or with a high level of public responsibility. The introduction of Section 56 could seriously impact on the recruitment practices of some employers.  The Information Commissioner’s Office (ICO) has been asked to clarify whether Section 56 would apply to basic criminal record checks required by an employer which would show unspent convictions but not cautions or spent convictions.  The ICO has confirmed that Section 56 will not apply in those circumstances.  The reasoning is that this is not a Data Subject Access Request under Section 7 of the Data Protection Act. 

What this means is that employers may continue to require job applicants or employees to provide a basic criminal record check as a condition of their employment whether or not they are covered by the Exceptions Order.

About the author

Natalie Ruane profile photo

Natalie Ruane

Natalie is a Partner and leads the Employment Law & HR team and specialises in education.

Published: Tuesday 9th December 2014
Categorised: Information Law

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