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Recruitment
[ch 8: pages 84-86]Reps could seek to negotiate workplace policies on monitoring which form part of a broader policy on data protection. This should also cover data on workers or potential employees gathered during recruitment processes. The DPA also applies to recruitment and selection procedures. Applicants should be informed what information is being gathered about them and what it will be used for.
ICO guidance on recruitment practices
With regard to recruitment, the ICO Employment Practices Code recommends that employers:
• make sure the organisation is identified properly in any recruitment advertisement. If a recruitment agency is being used, it must identify itself;
• use information collected for recruitment or selection purposes only. If an organisation intends using information collected for any other purpose, such as adding names to marketing lists, this must be clearly explained;
• ensure everyone involved in recruitment and selection understands that data protection rules apply and that they must handle personal information with respect;
• do not collect more personal information than is needed. It is a breach of data protection rules to collect personal information that is irrelevant or excessive. For example, bank details will only be needed from the successful candidate, and details of motoring offences should only be needed to recruit drivers;
• keep personal information secure: it should not normally be disclosed to another organisation without the individual’s consent;
• only ask for information about criminal convictions if this is justified by the type of job. In any event, an employer must not ask for information about “spent” convictions unless the job is covered by the Exceptions Order to the Rehabilitation of Offenders Act 1974 (for example, working with children and young adults);
• if information is to be verified, this must be made clear to the candidate, who should be told how this is to be done and what information will be checked;
• employers must only keep information obtained through a recruitment exercise for as long as there is a clear business need; and
• job application forms should warn the applicant of the employer’s intention to process information provided in the course of the job application and ask the applicant to give consent.
Criminal convictions checking can only be done via a DBS check (see box below).
Jobs that require a Disclosure and Barring Service (DBS) check
Applicants for jobs covered by the Exceptions Order to the Rehabilitation of Offenders Act 1974 must undergo criminal records checking, now known as a “DBS check”. DBS checks are carried out by the Disclosure and Barring Service, part of the Home Office, and involve a search of the Police National Computer. The search will disclose “any relevant matter”, which includes spent and unspent convictions and some cautions. There are three levels of DBS check, depending on the occupation — Standard, Enhanced, and Enhanced with Children’s and/or Adults Barred List check.
A DBS check should only be carried out on a successful applicant. The job can then be withdrawn if the check reveals anything that makes the applicant unsuitable. Only the prospective employer and the applicant should see the DBS certificate. The employer must keep a record only that a satisfactory/unsatisfactory check was made, and must not hold on to any detailed information.
The law changed in 2013, after a Supreme Court ruling in the case of R(T) v Secretary of State for the Home Department [2015] 1 AC 49. The ruling decided that DBS checks that reveal all past cautions and offences, however old or irrelevant, even dating back to childhood, are a breach of the right to privacy under Article 8 of the European Convention on Human Rights. In response, the government changed the law so that from 29 May 2013, certain old and minor convictions and cautions, reprimands and warnings must now be “filtered’. This means that they should not appear on a standard or enhanced level DBS check, and must not be taken into account by a prospective employer.
Many offences can never be “filtered” and will appear on the DBS certificate. For more information visit the website of NACRO (https://www.nacro.org.uk/), the crime reduction charity, or http://hub.unlock.org.uk, an independent charity offering support to people with convictions.
An employer that carries out DBS checks must have a policy in place on employing ex-offenders. The policy must be shown to any applicant who asks to see it.
As a result of changes under the Protection of Freedoms Act 2012, before a DBS check is sent to a prospective employer, the individual who is the subject of the check can make representations to the DBS, for example to challenge incorrect information on their record.