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Tag: Criminal record checks for employment

Finally, ‘enforced subject access’ becomes a criminal offence

From tomorrow, 10th March 2015, a practice known as ‘enforced subject access’ will become a criminal offence, as section 56 of the Data Protection Act comes into force.

As we originally reported in an update to our Information Hub in June last year, this is an important step in making sure that employers and organisations don’t take part in the unsavoury practice of requiring individuals to provide a copy of their police records through their rights of subject access.

Today, to help people understand what this means in practice, we’re:

  1. Publishing brief guidance for individuals on our self-help Information Hub
  2. Providing a news update for employers, as well as brief guidance for employers and organisations
  3. Highlighting the technical guidance that the Information Commissioners Office has published.

A more detailed news update is available on the main Unlock site.

‘Enforced subject access’ will become a criminal offence on 10th March 2015

We’ve learnt from the Information Commissioners Office that section 56 of the Data Protection Act 1998 will be brought into force on the 10th March 2015.

This means that “enforced subject access” will finally become a criminal offence. As we explained back in June 2014 when this was first announced, this is an important development for people with convictions.

Although it doesn’t prevent employers and others from getting access to criminal records through legitimate means (such as a basic disclosure through Disclosure Scotland or a standard/enhanced check through the Disclosure & Barring Service, depending on the job) what section 56 does do is prevent the use of significant amounts of sensitive personal data that can be disclosed as part of a subject access request.

In the past, we’ve come across examples where employers, insurers, education providers and housing providers have required people provide copies of their police record by applying to the police and paying £10 for a subject access request. This type of request discloses all information held on the Police National Computer, including convictions and cautions that are spent, as well as allegations or other ‘local police information’. The introduction of section 56 on the 10th March 2015 will enable a clearer message to be given to any organisation that is found to be undertaking this type of practice.

We will be making some more details available once the changes come into force. In the meantime, the ICO has draft guidance available on their website about what this will mean in practice.

‘Enforced subject access’ delays

The Ministry of Justice recently announced that the change to the Data Protection Act which makes enforced subject access a criminal offence has been delayed. It was originally meant to come into force on the 1st December 2014. It is now expected to commence early 2015.

As we understand it, the reason for the delay is a technical issue.

We will publish a further update once we have an implementation date.

Latest – 19/12/2014 – We’ve been informed that the technical encountered when finalising the introduction has now been resolved. Section 56 will now be commenced in March 2015. We don’t have a specific date as yet, but we’re expecting a further update, including the commencement date, in January 2015.

Latest – 16/02/2015 – This will be coming into force on the 10th March 2015. See here for more information.

We’re looking for examples of where ‘filtering’ doesn’t go far enough

We’re looking for examples of where ‘filtering’ doesn’t go far enough. Please read an update that we’ve published on our main site as part of our policy work on the DBS filtering process.

Challenging ineligible standard and enhanced checks

We continue to receive many enquiries from clients being asked to do standard or enhanced Disclosure and Barring Service (DBS) checks for jobs which they don’t think are eligible for one.

We are often asked for a ‘list of job titles’ which are eligible – no such list exists. What makes a role eligible depends not only on the work that you will be doing but, the place you are working (i.e. a hospital).  In essence therefore, this can be quite a grey area.

Added to this, when recruiting, employers don’t always state very clearly whether they intend to carry out a criminal record check or what level will be applied for.  Employer’s often don’t make this clear because they assume that it doesn’t concern the majority of their applicants.  However, if you have a criminal record, it can be the most important part of the recruitment process.

Why is this important?

The level of check an employer can carry out is extremely important, particularly if you have spent convictions – these wouldn’t be disclosed on a basic check.  Likewise, if the police hold information about you locally, this wouldn’t be revealed on a basic or standard disclosure but might be disclosed on an enhanced disclosure. Details of what can be found on different levels of criminal records check can be found here.

Remember, once a criminal record check is carried out and an employer has the information, then it is difficult to stop them applying the information they’ve received to any recruitment decision that they’re making.

The application for a DBS check for an ineligible position is unlawful under the terms of the Police Act 1997.  If an individual knowingly  applies for a DBS check for a post which is not included in the Exceptions Order 1975 then they would be committing an offence by knowingly making a false statement for the purpose of obtaining or enabling another person to obtain a certificate.

How do I know if the role is eligible?

As we’ve already mentioned, there isn’t a definitive list. The types of positions which may be eligible for standard or enhanced checks are contained in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. These can be divided into five broad categories: –

  1. Professions
  2. Law & Order
  3. Certain Regulated Occupations
  4. Health and Social Care
  5. National Security

But not every job is eligible. We’ve heard from clients working in clerical roles in offices to mechanics in garages who have all been asked to do enhanced checks.  A particular favourite was a guy who, as part of his role, checked whether customer toilets met the company cleaning standards – another enhanced check requested!!

How do I raise concerns about an ineligible check without alerting my employers to the fact that something is likely to be disclosed on a DBS check?

We would always encourage anybody who believes that a check is ineligible to raise their concerns with the organisation if they feel able to. You will need to be careful not to raise suspicions that you have a criminal record and who you need to speak to will vary.  It will normally be somebody with recruitment or personnel responsibilities. We have an establishing eligibility section on the Hub that might help.

If the organisation insists on carrying out the check, you are not legally obliged to give your consent. However, if you refuse an employer will normally reject a job application. You may need to consider agreeing to the check, then raising a formal eligibility query with the DBS.

Challenging a potentially ineligible check

The time to use the DBS Eligibility Query process is when:

  1. you have spent convictions, and
  2. you’re applying for a job that says they will do a standard or enhanced check, and
  3. you’ve been offered the position, and
  4. you’ve been asked to consent to a DBS check

Once an application for a standard or enhanced check has been submitted to the DBS, you can use the Eligibility Query process to stop the check whilst the DBS investigate whether the check is lawful.  Details of the process can be found in the ineligible checks section of the Hub.

In a case where we helped an individual go through the eligibility process, they found the process relatively easy. The DBS requested additional information from both sides (applicant and organisation) but at all times managed to protect the identity of the applicant.  The DBS found in the applicants favour that an enhanced check was ineligible.

The results so far

As the case above shows, the Eligibility Query process is working. It’s fair to say that there are still problems with the overall system – for start, it shouldn’t be left to individuals to have to query individual applications.

However, in a recent Freedom of Information request, we asked the DBS how many times the DBS has written to employers under their Ineligible Applications Process. Between March 2012 and February 2013, they’d written to 3,311. Of those, the results were that 1,385 applications were not completed, which works out at 42% of the ones that the DBS looked into.

So the message we want to give is, if you think a job is carrying out an ineligible check, then challenge it.

As always, we’re keen to hear of examples where you’ve challenged an employer, either formally or informally. Send your examples to policy@unlock.org.uk.

Employers’ access to ‘subject access’ records will become a criminal offence

Update – February 2015 – This will now be coming into force on the 10th March 2015. See here for more information.

Update – December 2014 – The Ministry of Justice recently announced that this change to the Data Protection Act has been delayed and is expected to commence early 2015. We will publish a further update once we have an implementation date.

We’ve learnt today that the Ministry of Justice are planning to bring section 56 of the Data Protection Act (DPA) 1998 into force on the 1st December 2014.

Section 56 prevents employers from requiring people to use their subject access rights under the DPA to provide certain records, such as police records, as a condition of employment. It also prevents contracts from requiring certain records as a condition for providing or receiving a service, such as housing or insurance. Requiring people to provide these records will become a criminal offence, punishable by a fine. In England and Wales the maximum financial penalty on summary conviction in the magistrates’ court is £5,000 (soon to be unlimited). On indictment in the Crown Court the fine can be unlimited.

We’ve long argued that section 56 needs to be brought into force, but this wasn’t ever possible until reforms to the Rehabilitation of Offenders Act 1974 were brought in on the 10th March 2014.

For people with convictions, this is an important development. Although it doesn’t prevent employers and others from getting access to criminal records through legitimate means (such as a basic disclosure through Disclosure Scotland or a standard/enhanced check through the Disclosure & Barring Service, depending on the job) what section 56 does do is prevent the use of significant amounts of sensitive personal data that can be disclosed as part of a subject access request.

In the past, we’ve come across examples where employers, insurers, education providers and housing providers have required people provide copies of their police record by applying to the police and paying £10 for a subject access request. This type of request discloses all information held on the Police National Computer, including convictions and cautions that are spent, as well as allegations or other ‘local police information’.

The introduction of section 56 on the 1st December will enable a clearer message to be given to any organisation that is found to be undertaking this type of practice. The legislation only allows requirements of this type where the record is required by law or is justified in the public interest. We understand that the Information Commissioners Office will be publishing guidance nearer to the date of implementation, to better explain how this will work in practice. In the meantime, there is a helpful blog on the ICO website.

This measure follows on from reforms to the Rehabilitation of Offenders Act 1974 announced in a Written Ministerial Statement on the 13th February 2014.

Supreme Court ruling on criminal record checks / Filtering process

Today the Supreme Court ruled on a case that’s been going through the courts for some time. An earlier Court of Appeal case is what led to the ‘filtering process’ being introduced by the Disclosure & Barring Service.

The reason for this post is to just make it clear that, as a result of today’s judgement, we don’t expect any changes to be made to the filtering process. It was suspected by some that the reason the Government were appealing was so that they could remove the filtering process all together. The fact that they lost their appeal means that the filtering process stays.

The read more about today’s judgement, read the update on our main site.

For more practical information on the filtering process as it stands, click here.

We’ve produced a simple guide on the DBS ‘filtering’ process

We know how complicated the criminal records process can be.

The ‘filtering’ process that came in in May 2013 has been quite a culture shock to many people who were previously told that all cautions and convictions would come back on standard and enhanced checks.

At the time, we developed a detailed guide on filtering.

But, through our helpline, we’ve been finding it quite difficult to make filtering simple and easy to understand. Also, as part of delivering our training masterclasses, we found that practitioners were forgetting how this fitted within the broader framework for disclosure.

So, we’ve recently put together a simple guide on filtering. This is available as a downloadable A4 document (click the image below).

filteringsimple

We hope you find it helpful. Let us know what you think by using our feedback form.

 

The Disclosure & Barring Service update the question they ask about convictions

Following our complaint to the Information Commissioners Office which recently led to the Disclosure & Barring Service signing an undertaking to update their application form, we have now had it confirmed by the DBS that their application form has now been updated. A copy of this is below.

e55

As you can see from the above image, the question (e.55) now asks only about convictions, cautions, reprimands or final warnings which would not be filtered. This means that, if your conviction or caution would be filtered at the time of completing the application, you can tick “no”.

You can find out more about completing a criminal record check application.

How do you know if you conviction or caution will be filtered? The DBS should be including guidance with the application form. We have also produced a simple guide and a detailed guide that should also help.

Updates to DBS filtering process

December has seen a couple of updates from the Disclosure & Barring Service regarding the filtering process.

Nothing has substantially changed – it’s simply that the DBS are trying to improve the way that they’re explaining how the filtering process works.

So what has changed?

Firstly, the DBS has updated their list of offences that will never be filtered. This increases the list of offences to over 1,000, as well as those offences such as attempting or conspiring to commit the offences listed). This update isn’t the result of a change in the law – it comes from the Home Office, who are trying to produce a list they still haven’t produced a list of offences that would be eligible for filtering so long as they meet the other criteria (which we’ve suggested would be useful).

Secondly, the DBS has updated their filtering guidance. Helpfully, they’ve given some advice to employers on how they should change their application forms to ask a more accurate question which takes into account filtering.

Although we’re not the publishers of these two pieces of information, we always appreciate feedback on what you think about them, and particularly in raising any issues that you find, so that we can raise them with the Home Office and DBS. Please get in touch.

We want to make sure that our website is as helpful as possible.

Letting us know if you easily found what you were looking for or not enables us to continue to improve our service for you and others.

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