How much can your employer quiz you about your past?
Date: January 30, 2018 by IDU
No employer would publish a job advert that contained discriminatory wording and most employers are aware that they need to be careful not to indirectly discriminate against protected groups when it comes to describing the requirements of a role. For example, very few job adverts specifically state that a job is ‘full time only’ given that this could indirectly discriminate against women with childcare responsibilities and would need to be objectively justified.
Employers need to be equally cautious in relation to requesting details of prior convictions and undertaking Disclosure and Barring Service (DBS) checks – previously known as Criminal Records Bureau Checks – for job applicants. Asking excessive information or indicating a blanket ban could indicate that the employer may be in breach of the Rehabilitation of Offenders Act 1974 and in breach of the Data Protection Act 1998 due to the misuse of sensitive personal data.
Obviously there is a need to balance the risk of harm to customers or service users and possible damage to a company’s reputation against the rights of the candidates when deciding whether it is appropriate to carry out checks on applicants. Certain roles in regulated activities, such as education, are specifically exempted and enhanced DBS checks are required by law or industry practice but in other roles, or in unregulated sectors, the situation is not so clear.
Many such checks are carried out because things have always been done that way, rather than an actual need for them on a case by case basis. Unless your role or job falls within a specific exemption, the employer can only ask you to disclose unspent convictions – i.e. those convictions which are either serious or recent enough not to have been removed from your record under the Rehabilitation of Offenders Act 1974.
It’s understandable that an employer will want some reassurance that a potential employee does not have any live convictions, but they do not have a right to ask for ‘excessive’ information. Employers should at least consider whether there may be better methods of assessing an applicant’s suitability for a role – for example a carefully monitored probationary period.
Since details about a person’s criminal convictions is considered sensitive personal data under the Data Protection Act 1998, there are stringent requirements on the employer about processing and using that data. The employer will need your written consent to obtain and process any information and should make clear what checks will be carried out and for what purposes such information will be used from the start. Further information is available on the government website: https://www.gov.uk/government/news/use-the-dbs-website-to-answer-your-query