New findings reveal UK employers will struggle to justify the request of criminal record information at application stage because of GDPR

Groundbreaking analysis of General Data Protection Regulations (GDPR) and the new Data Protection Act by Nacro reveals that employers across the country will struggle to justify requesting criminal record information at the initial application stage of a recruitment process, if they are to comply with the new laws which came into force on 25 May 2018.
The findings highlight that key principles of the Ban the Box campaign, which Nacro has been championing since its launch in 2013, now appear to be enshrined in law by the changes made to data protection legislation.

Ban the Box calls for employers to remove questions about criminal records from the initial application form or online portal, so that employers can give people with convictions a better opportunity to compete for jobs, and make more informed choices about suitability at more appropriate stages in the recruitment process.

Legal Officers from Nacro found that in order for employers to adhere to the new data protection laws and avoid potential data protection breaches, employers must ensure personal data from candidates is only collected if ‘actually needed’; any information gathered is ‘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.

Employers requesting criminal record declarations during the initial stage of recruitment are likely to find it difficult to justify that they have a legitimate interest in doing so. To avoid failure to meet these requirements, Nacro is encouraging employers to ‘Ban the Box’ and, if needed, request the disclosure of criminal record information at a more appropriate stage of the recruitment process, when applicants are being seriously considered for roles.

Nacro also warn that employers requesting criminal record information from all applicants at the initial application stage may be at risk of indirect discrimination claims from candidates, particularly as people from disadvantaged backgrounds are already over-represented in the criminal justice system.

Nacro is 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 an individual has the right to withdraw their consent to the processing and retention of their criminal record information at any time. This 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.

Nacro Chief Executive, Jacob Tas, said:

‘Over 11 million people in the UK have a criminal record and people with convictions find it eight times harder to find a job. For years, several organisations have been campaigning for all employers to Ban the Box.  With the GDPR now in force, our analysis has revealed that key principles of Ban the Box may be enforceable.   

‘Employers shouldn’t fear these changes but see them as an opportunity to improve their recruitment processes. The changes don’t remove an employer’s ability to take into account someone’s criminal record where relevant for the job. They simply mean they should review their processes to ensure the information is requested at a more appropriate stage of the process.

‘It is time to think differently about the untapped talent that people with convictions can bring to organisations.  We created our Employer Advice Service to provide organisations with operational advice, training and ongoing support to ensure correct processes are followed when dealing with job applicants who have criminal convictions, and our Resettlement Advice Service, seeks to remove the barriers that prevent people with criminal records, or those who are at risk of offending, from moving forward with their lives.  We encourage any employers requiring advice to view our support for employers, send an email to employeradvice@nacro.org.uk, or call 0845 600 3194 to find out more.’

Business in the Community’s campaign manager Jessica Rose said:

‘Ban the Box is designed to remove unnecessary barriers to employment for ex-offenders, asking employers to take into account candidates’ skills, experience and attributes before asking about convictions. Organisations across all sectors, from legal firms to care homes, have successfully banned the box so we encourage all employers looking at their responsibilities under GDPR to review their processes with regard to criminal convictions and sign up to the campaign.’

Nacro has produced this briefing on the changes.