According to analysis carried out by the social justice charity, Nacro, prospective employers will need to be very careful that they are complying with the new General Data Protection Regulations (GDPR) when requesting criminal record information from job applicants.
To avoid potential breaches early on in the recruitment process, prospective employers have to ensure that personal data from candidates is only collected if “actually needed”. Any information gathered also has to be “limited to what is necessary” and there must be a “clear purpose” for processing any criminal record information at the start of any recruitment process.
Prospective employers requesting criminal record declarations during the initial stage of recruitment may find it difficult to justify that they have a legitimate interest in doing so, according to Nacro.
The charity also warns that employers requesting criminal record information from all applicants at the initial application stage may be at risk of indirect discrimination claims, particularly as people from disadvantaged backgrounds are already over-represented in the criminal justice system.
Nacro is therefore encouraging employers to carefully consider the “lawful basis” on which they rely to gather such specific personal data and to be cautious about relying on “consent”, as individuals have the right to withdraw their consent to the processing and retention of their criminal record information at any time.
This, says the charity, could leave employers in a vulnerable position, in particular where they may need to demonstrate compliance with regulatory or data protection requirements at a later stage.
To avoid these problems, Nacro is encouraging employers to “Ban the Box”. That is, to remove questions about criminal records from the initial application form or online portal, in order to give people with convictions a better opportunity to compete for jobs.
It suggests instead that employers request the disclosure of criminal record information at a more appropriate stage of the recruitment process, when applicants are being seriously considered for roles.
Neil Todd of Thompsons Solicitors commented:
“The General Data Protection Regulations raise a myriad of issues for employers and NACRO have highlighted yet another one in the analysis it has undertaken. The report is correct to highlight the potential for discrimination when requesting criminal records on an initial application and employers would be well advised to consider the information they request from prospective candidates very carefully”.
To read the full analysis, go to the Nacro website.