Enforced Subject Access – Practicalities

Recruit With Conviction warmly welcomes the commencement of the Data Protection Act Section 56, which criminalises the practice of enforced subject access relating to criminal records for the purpose of employment or the provision of services from 10 March 2015.

This is quite distinct from using disclosure certificates appropriately.

In our broad experience of working with employers and employability advisers, we have seen a remarkable decrease in any evidence relating to enforced subject access for the purposes of employment.

While it is ironic that an employer can now pick up a criminal conviction for forcing a job applicant to inappropriately disclose theirs, employers which adopt Recruit With Conviction approaches will have no problems.

We have been discussing this with the Information Commissioner’s Office and there is a broader and more complicated impact for employability advisers. The criminal record subject access information is a valuable tool in the Apply With Conviction approach but advisers will be committing a criminal offence if they ask for it in an inappropriate manner.

Within all Apply With Conviction workshops we highlight the confidentiality of criminal conviction information and the respect with which it should be handled as well as the right use of language to talk about criminal record subject access with service users.

Quite clearly criminal record information is very sensitive. It belongs to the service user and it is their choice to share subject access with anyone. It should always be clear that this is not a condition of participating in a service and is in no way linked to their benefit entitlement.

Extract from Information Commissioner’s Guidance (1)
An individual who requires someone to make a subject access request is committing a criminal offence. This is an offence which can be heard either by a magistrates court or a crown court, in England, Wales and Northern Ireland. In Scotland it will be heard in a sheriff court.

Committing such an offence in England and Wales can carry an unlimited fine, while in Scotland the fine
can be unlimited if heard under solemn procedure or £10,000.

In Northern Ireland, the maximum fine if convicted under a summary offence is £5000, or if convicted on indictment the maximum fine is unlimited (unless expressly limited by statute).

(1) https://ico.org.uk/media/for-organisations/documents/1042608/enforced-subject-access-s56.pdf