Enforced Subject Access Unlawful from 10 March 2015

Employers who force job applicants or employees to obtain a copy of their criminal record by means of a subject access request will soon be committing a criminal offence.

Some employers require job applicants to obtain a copy of their criminal record and show it to the employer as a condition of a job offer. The Information Commissioner has always disapproved of this practice, known as enforced subject access, and the  Employment Practices Code makes it clear that employers who require information about criminal records should obtain it through a Disclosure and Barring Service check. Likewise the Disclosure and Barring Service disapproves of the practice as it reveals details of all convictions, including spent convictions which an employer may not be entitled to request under the Rehabilitation of Offenders Act 1974.

S56 Data Protection Act 1998 provides that this practice is unlawful but that section has not been brought into force. However the Government has now confirmed that s56 will come into force on 10 March 2015, meaning that requiring employees to obtain a copy of their criminal record through a subject access request will become a criminal offence. 

The criminal offence carries an unlimited fine in England and Wales.  In Scotland the fine can be unlimited if heard under the solemn procedure, or otherwise is limited to £10,000.