It is now a criminal offence for employers to force job applicants and employees to obtain and then provide a copy of their criminal record by means of a subject access request under the Data Protection Act 1998 (DPA).

The new offence covers employees and prospective employees as well as individuals who contract to provide services to another.

Therefore, it extends beyond the employment context, as it makes it a criminal offence for any person to require another person, or a third party, to make a subject access request for their criminal record information as a pre-condition to providing them with, or offering to provide them with, goods, facilities or services.

The Information Commissioner has long disapproved of the practice of requiring applicants or existing workers to acquire and produce a copy of their criminal record. A press release issued by the Information Commissioner described this process as a ‘back-door’ practice undertaken by ‘rogue employers’. The Information Commissioner’s Data Protection Employment Practices Code states that, where employers need to protect their business, customers or clients by verifying an individual’s criminal history, they should seek disclosure through the Disclosure and Barring Service (formerly known as the Criminal Records Bureau), which does not disclose any spent convictions.

If you would like to discuss any of the issues raised in this blog, please do not hesitate to contact a member of our Employment department.

Myerson Solicitors LLP are premier employment solicitors in Cheshire and Manchester. Our expert solicitors advise on all aspects of employment law, including tribunal claims, TUPE transfers, contracts of employment and settlement agreements. We also provide extensive support to HR departments and professionals on the full range of employment matters.

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