Section 56 DPA
Labour & European Law Review Weekly Issue 417 29 April 2015
As of last month, employers are no longer entitled to require job applicants (and existing employees) to provide them with a full copy of their criminal record under a subject access request.
It is now a criminal offence under section 56 of the Data Protection Act for employers (or any other third party) to “require” an individual to make a subject access request to obtain information about any convictions or cautions they may have and then provide it to their employer.
Instead if the employer wants to access someone’s criminal record they must use the criminal records disclosure regime. This lets them request basic checks regarding unspent convictions or standard checks that include spent and certain unspent convictions, cautions, reprimands and some final warnings. The change applies both in relation to employment and in relation to the provision of goods, facilities and services to the public.
The purpose behind section 56 is to stop organisations getting access to records that would otherwise only be available to the individuals themselves. Although employers have long had the right to make legitimate requests about a person’s criminal record, they could not find out, for example, about spent convictions as these would normally only be disclosed to an individual under a subject access request.
If an employer breaches section 56 (which applies to England, Wales, Scotland and Northern Ireland), they run the risk of a fine which varies depending on where the offence has been committed. In England and Wales, the offence carries an unlimited fine; in Scotland it can be unlimited or may be capped at £10,000 if heard under “solemn procedure”; while in Northern Ireland, if convicted under a summary offence the maximum fine is £5000 or if convicted on indictment it is unlimited.
Neil Todd, from Thompsons Solicitors, commented: “The practice of requiring employees or job applicants to provide details of their criminal records by making an enforced data subject access request has always been discouraged by the Information Commissioner’s Office. The provision has now finally been enacted following reforms to the Rehabilitation of Offenders Act 1974.”
For more information, visit the Information Commissioner’s website: https://ico.org.uk/media/1042608/enforced-subject-access-s56.pdf