If you are an employer in, for example, the care, education or health sectors, you will need to know if prospective employees have convictions, spent or unspent, before they can be allowed to work with children or vulnerable adults in a regulated activity.

At present there is a legal process in place which allows employers to check the criminal records of individuals by making an application to the Disclosure and Barring Service (DBS) in England and Wales, or Disclosure Scotland in Scotland. Information will only be provided if the individual in question is applying to work or already working in certain roles and where there is a legal requirement for employees not to have certain types of criminal conviction on their record. There are safeguards in place within this process to ensure that only relevant information is disclosed, protecting the privacy and rehabilitation of the individual.

However, some employers have been requiring prospective and existing employees to make what are known as “subject access requests” to the Police for full disclosure of their criminal records, commonly known as a “back-door” criminal record check. There may be a number of reasons for this, including saving cost (applications to DBS cost between £26 and £44, where a subject access request only costs up to £10), or where the employer wants information regarding criminal records to which they would not ordinarily be entitled. The problem is that information which is not relevant to the role could be disclosed, leading to the employer making a decision based upon that information.

As of 10th March 2015, it is a criminal offence for employers to carry out “back-door” criminal record checks. The criminal offence, contained within the Data Protection Act 1998, prohibits an employer requiring an applicant for a job or a current employee to produce criminal records in connection with their recruitment or continued employment. An employer who requires an individual to make a subject access request in order to obtain criminal records will be committing a criminal offence. It is, therefore, simply the requirement to produce such information which would lead to an offence being committed. Committing such an offence can carry an unlimited fine.

Further information regarding this new offence can be found on the website of the Information Commissioner’s Office here.

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