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Strong convictions - how employers used data protection law to breach the Rehab of Offenders Act

Luke Whitmore - Law on the Web

  1. 15 May 2015
  2. Employment
  3. 0 comments
Businessman in handcuffs

The government has closed a legal loophole that was forcing some job applicants to reveal ‘spent’ convictions for minor offences from their past.

As of the 10th of March 2015, it is illegal to demand that a potential employee reveal information about spent convictions by having them make a subject access request to the police. This was found to be in breach of the spirit of legislation designed to ensure that ex-offenders do not have to reveal old convictions for minor offences when applying for jobs.

Under the Rehabilitation of Offenders Act, some convictions become ‘spent’ after a certain amount of time. After a specified period has passed, people convicted of these offences are no longer required to disclose them to potential employers, except in a limited number of cases. It is also illegal to refuse to employ someone due to a ‘spent conviction’. More serious offences which result in prison sentences lasting more than four years will never become spent.

The aim of the Act is to ensure that people who have committed minor offences are not punished unduly by facing reduced career opportunities in the future. Before their introduction, employers were often reluctant to hire people with a criminal record, even if it consisted of a minor offence in the distant past. The Rehabilitation of Offenders Act was put in place to ensure that offenders who had served their sentences were able to reintegrate into society without being judged for the rest of their lives.

Some employers made a habit of getting around this, however, by requiring job applicants to make a ‘subject access request’. Subject access requests were introduced by the Data Protection Act 1998 and allow an individual to find out what data a specific organisation holds about them. Employers would tell job applicants that they had to make a subject access request to the police and provide them with the results, thereby allowing them to bypass the proper procedures and get access to police records on the individual, which includes cautions, spent convictions and even mere allegations brought against them.

As of the 10th of March, however, section 56 of the Data Protection Act has come into force, making it a criminal offence for employers to demand that prospective employees submit an enforced subject access request in order to secure a job. Employers who breach this rule can be summoned to either Crown court or Magistrates Court and face an unlimited fine. They could also be prosecuted by the Information Commissioner’s Office.

When appropriate for sensitive roles, such as work with children or vulnerable adults, employers will still be able to find out about any blemishes on the record of prospective staff by undertaking a Disclosure and Barring Service (DBS) check, but seeking out information on criminal records when it is neither required by law nor in the public interest will finally be forbidden.

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