Warning - enforced subject access requests unlawful
Solicitor, Veale Wasbrough Vizards
From 10 March 2015, it will become a criminal offence for employers to require existing or prospective employees to obtain and disclose copies of their criminal records through subject access requests (known as an enforced subject access).
Employers who commit this offence will face an unlimited fine in England and Wales.
Currently, enforced requests may be used to compel individuals to disclose details of their criminal record before a recruitment procedure is progressed. The Information Commissioner's Employment Practices Code already advises against this practice, recommending that the employer obtains the individual's criminal record through a Disclosure and Barring Service check (DBS check). Unlike enforced subject access, a DBS check will not reveal details of spent convictions, to which a third party may not be entitled.
Employers should review their current practices to ensure relevant information is obtained through DBS checks only, from 10 March 2015. From this time, employers who continue to use enforced subject access may risk prosecution under section 56 Data Protection Act 1998.
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