Enforced subject access requests and the law

There’s been a lot of noise surrounding enforced subject access requests and the law recently, but how many of us actually know what this means and the legal implications for employers?

Employers have been banned from making potential new recruits apply for Criminal Record Checks on themselves. Known as enforced subject access requests, this practice has now been outlawed to prevent employers from insisting employees use their subject access rights under the DPA to obtain and provide certain records as a condition of employment.

For some positions, such as those working with children or vulnerable adults, employers have requested evidence of previous convictions to ascertain if any candidates have been subject to related legal proceedings. They then use this information to see if the candidate is suitable for the role subject to the findings.

This activity has always been looked upon in a negative light by the Information Commissioner as this information should be obtained via a Disclosure and Barring Service check and asking an employee or candidate to obtain this information was often perceived as a ‘back door route’.

Section 56 of the Data Protection Act now prevents employers from insisting employees use their subject access rights under the DPA to obtain and provide certain records as a condition of employment. Section 56 does not, however, prevent such requests where the record is required by law or is justified in the public interest.

Therefore, any employer that requires criminal records checks on current or prospective new employees must seek legal advice to see if their requests for this information is enforceable by the law.
Looking to find out more about enforced subject access requests? Then contact us today and let us guide you through the new legislation.

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