Criminal record requests could be breaching GDPR, warns charity

August 14 10:00 2018 Print This Article

Employers should treat law change as an ‘opportunity’ to review recruitment process

Criminal record requests could be breaching GDPR, warns charity

Employers could “struggle to justify” requests for criminal record details early in the recruitment process now the General Data Protection Regulation (GDPR) is in force, a social justice charity has warned.

GDPR, which was enacted in the UK through the Data Protection Act and came into force on 25 May, requires potential employers to only collect personal information where it is strictly necessary.

Charity Nacro has warned that employers still requesting criminal record details at the start of the recruitment process may struggle to align their reasoning with GDPR. The charity has urged businesses to reconsider what information they ask for and, if it is necessary to request criminal record details, to only do so towards the end of the hiring process, when the candidate is being seriously considered.

Jacob Tas, Nacro chief executive, said employers should see GDPR as “an opportunity to improve their recruitment processes”.

“The changes don’t remove an employer’s ability to take into account someone’s criminal record where relevant for the job,” he said. “They simply mean they should review their processes to ensure the information is requested at a more appropriate stage of the process.”

Paul Holcroft, associate director at Croner, added: “The key points to consider here are the potential barriers that knowledge of a criminal record can have on an application and whether it is therefore relevant to process this information at an early stage.”

Christopher Stacey, co-director of Unlock, a charity for people with convictions, said employers should use GDPR as an “opportunity to review their approach and think about whether they need to ask about criminal records at all and, if they do, how they manage the process so they don’t miss out on talented and qualified applicants with previous convictions”.

According to Nacro, more than 11m people in the UK have a criminal record.

Nacro has also been backing Business In The Community’s (BITC) Ban the Box campaign since it launched in 2013. This calls for employers to remove questions about criminal records from preliminary job application forms.

BITC’s campaign manager, Jessica Rose, added: “Organisations across all sectors, from legal firms to care homes, have successfully banned the box so we encourage all employers looking at their responsibilities under GDPR to review their processes with regard to criminal convictions and sign up to the campaign.”

A survey conducted by YouGov in 2016 revealed 50 per cent of employers would not consider hiring an ex-offender, while 45 per cent of businesses felt an ex-offender would be an unreliable employee.

The government is currently seeking feedback on what can be done to help ex-offenders into employment. The cabinet office’s call for evidence closes on 31 August.

Parliament has already considered the issue in some detail. In 2016, a report by the work and pensions committee suggested reducing national insurance contributions as an incentive for those actively employing ex-offenders.

Meanwhile, last September, a review led by Labour MP David Lammy proposed introducing a US-style system where people can apply to have their criminal record sealed from potential employers. The judge or panel considering the request would be required to take into account whether the person was a child or a young adult at the time of the offence, and whether the person had demonstrated their behaviour had changed.

Last month, the Supreme Court decided a man’s human rights had not been infringed when a criminal record check certificate revealed he had been acquitted of a serious crime.

However, as a postscript to his judgment, Lord Carnwath noted he had concerns over the guidance given to those providing information to be included in criminal record certificates, particularly in as far as how potential employers were likely to react to the information disclosed.

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