Our helpline was recently contacted by an individual who wanted to highlight a question being asked about criminal records by a professional body on their application form. The individual believed that this question was potentially very misleading as it asked:
“Have you ever received a caution or conviction for a criminal record?”
We informed the individual that membership of a professional body was covered by the Rehabilitation of Offenders Act and that the organisation were only legally entitled to ask about unspent convictions. If they intended to do any formal criminal record checks, they would only be eligible to carry out a basic DBS check. We were able to confirm to the individual that if an applicant disclosed a spent conviction in error, then the organisation should disregard it. If they retained the information, then they would be holding it unlawfully and could be in breach of the Data Protection Act (DPA) 2018.
We contacted the professional body to raise our concerns over the question on their application form, suggesting some alternatives which would be fully compliant with the Rehabilitation of Offenders Act. The suggested wording would provide applicants with very clear guidance about what they needed to disclose.
Despite contacting them several times, the professional body didn’t engage with us and we therefore referred the case to the Information Commissioner’s Office (ICO).
Several months later, the professional body contacted us to confirm that they would be changing the question relating to criminal records on their application form to the following:
“Do you have any unspent convictions that would fall within the relevant criminal convictions defined within Regulation 13 of the (professional body) Disciplinary Regulations? If yes, please inform the Institute Secretary.”
We were happy that the question was now very clear, and applicants would be in a much better position to understand what they needed to disclose.
Lessons
This case highlights how professional bodies often believe that the wording they use on application forms around criminal records is correct. However, very often the question will be misleading and could potentially result in applicants over disclosing the details of their criminal record and lead to an organisation breaching the DPA if they were to take the information into consideration.
If you believe that an organisation is asking a misleading question, it’s always worth raising your concern with either the organisation themselves or an appropriate regulatory authority, in this case the ICO. In this instance the professional body amended the question about criminal records to make it clear as to what an applicant was required to disclose.
Links
- Practical guidance for employers – Asking about criminal records
- Guidance for employers on GDPR, data protection and the processing of criminal records data in recruitment.
Notes about this case study
This case study relates to our work with other organisations.
Names and details have been changed to protect the identity of those involved.