Asking for criminal record information during recruitment may be unlawful

One in five employers have asked about criminal records in a potentially unlawful or misleading way, research has revealed. It found that 22% of businesses still asked questions which risked breaching the Rehabilitation of Offenders Act (ROA) and General Data Protection Regulation (GDPR).

It found almost three quarters of 80 large, national employers asked about criminal records on their application forms. Of those, 80% provided no guidance to applicants on when a conviction becomes spent.

Under the ROA, it is unlawful to gather information about spent convictions and cautions. Many of those surveyed asked about cautions, which firms are not legally entitled to enquire about as they are spent immediately.

In addition, asking for information employers are legally obliged to ignore – such as very specific data on certain offences – is considered excessive data collection and may be in breach of the GDPR and the Data Protection Act 2018.

For some roles it is essential that checks are robustly conducted.  However with a high proportion of the working age population having a conviction of some type, employers need to ensure they are applying such checks proportionately.

Asda, Superdrug and Marks & Spencer were among the employers named as being potentially in breach of the law. None of the employers surveyed provided information to applicants on why they collect criminal records data, or how long it will be retained for. Under GDPR, employers who fail to provide this information are likely to be in breach of the law.

The report recommended employers consider whether they need to ask about criminal records at and that where this was necessary, they should review their approach in light of changing data protection legislation, ensure they only ask for information to which they are legally entitled and recognise the business benefits of recruiting people with convictions.

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