It will soon become a criminal offence for an employer to require an individual to make a Subject Access Request (SAR) for their Police Record.
A planned change to section 56 the Data Protection Act 1998 (DPA) will not prevent employers with legitimate justification from getting access to criminal record information via appropriate channels i.e. Disclosure Scotland and the Disclosure & Barring Service.
The change to Section 56, which is expected to come into force on 1 December 2014, means that it will become a criminal offence for an employer to require an individual to use their Subject Access rights as defined under the DPA, to provide certain records, including Police Records, as a condition of employment.
A Police Record is obtained directly from the Police and discloses all information held on the Police National Computer, including convictions and cautions that are spent, as well as warnings and other allegations or local police intelligence.
If an employer determines that carrying out a criminal record check is justified, they need to make it clear to the data subject that spent convictions do not have to be declared, unless the position is covered by the Exceptions Order to the Rehabilitation of Offenders Act 1974, as in the case of Financial Conduct Authority (FCA) Regulated Roles.
This change in the law has been made as a direct response to practices of organisations, that have hitherto made it a condition that individuals make a Subject Access Request to obtain a copy of personal sensitive data, including Police Records.
By Michael Whittington
Head of Employee Screening
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