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New law: Employers can no longer automatically carry out criminal conviction checks on prospective employees

Employers should check if they may still automatically carry out blanket criminal conviction checks lawfully on prospective new employees, now that the General Data Protection Regulations (GDPR) and Data Protection Act 2018 are in force.

October 2018

This update was published in Legal Alert - October 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

Such checks are no longer lawful unless there is an actual legal requirement to do so, such as a regulatory requirement under the rules of the Financial Conduct Authority, or they are allowed on some other basis, for instance, 'legitimate interests'.

If allowed on some other basis, checks cannot normally be made automatically. The employer will usually have to decide whether it is entitled to rely on that basis. For example, if the employer is arguing that the 'legitimate interests' test applies, it must show that it has analysed whether its interests in making the check outweigh the employee's right to privacy.

If the employer is relying on the new employee's consent, they must ensure it has been properly given in accordance with the new consent rules and conditions, and that it has not been obtained in circumstances that negate it – for example, because of an imbalance in their bargaining power, such that the employee fears they won't get the job if they refuse.

The Information Commissioner's Office has yet to issue guidance in this area.

Operative date

  • Now

Recommendation

  • Employers should review their recruitment procedures and employee privacy policies to ensure that any criminal record checks on prospective employees are carried out lawfully, given that they can no longer be carried out automatically, without the employee's consent

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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