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Tag: Recruitment practice/policy

Your right to be forgotten

Think back to the last time you applied for a job. Did the application include a tick box question on criminal convictions?

Last year Unlock published research showing that three quarters of national employers still ask about criminal records on application forms. This can be off-putting to applicants with convictions and we don’t think it’s necessary for employers to ask this question so early on. Employers are responsible for deleting unnecessary information – whether its from applicants who don’t take the job, or employees who have left. This post looks at how you can request that your data is deleted when it’s no longer needed.

Deleting criminal records information

Where an organisation (known as a data controller) wants to process data about criminal convictions, they must have a lawful basis for doing so under Article 6 and a condition of processing under Article 10 of the GDPR. As a result of GDPR, organisations need to consider what information is necessary, and when. Here we’ll focus on employers but the same rules apply to any organisation that collects personal data – housing providers, colleges or universities, insurance companies. If you’re being asked to disclose information about convictions, you should be able to access the employer’s privacy policy which will tell you how long your data will be retained. Employers should delete information within these timescales.

However, a CIPHR survey found that this is not always happening as it should. 137 HR professionals were asked if they had published retention periods, and whether data was being deleted at the right time.  83% had published retention periods for data, but only 69% had actually deleted the information as they should have. More than half used paper notes or calendar reminders rather than automated systems to let them know when data should be deleted.

Where data protection breaches are proven, enforcement action could have serious consequences for organisations. The 30% of HR teams who admitted they had not deleted data as required were exposing their companies to significant financial penalties – the maximum fine now is £17.5 million or 4% of the company’s annual global turnover (whichever is higher).

What can you do?

The GDPR gives individuals rights over their data – we recently published guidance for individuals on this. When your information is no longer necessary, it should be securely destroyed. This is known as the right to erasure or the ‘right to be forgotten’ and means you have more power to hold data controllers to account. Where might you want to use your right to erasure?

If you have:

  • ticked the box on an application form for a job, for housing or a place at college or university
  • disclosed more detailed information during the recruitment process
  • provided your employer with a DBS certificate
  • disclosed an unspent conviction that has become spent
  • left a job where your criminal record information was collected during recruitment.

If any of these apply to you, consider asking the data controller to #deletemydata. You can download a template here.

Already done this? Tell us about it.

If they are unable or unwilling to resolve your concern, you can raise the matter with the Information Commissioners Office within three months of your last meaningful contact with them.

Are there any advantages to disclosing your criminal record to your jobcentre/work programme advisor?

If you’re not asked about your criminal record then, legally, you don’t need to disclose any unspent convictions, but in our opinion, withholding this information means that your advisor may not be able to provide you with the best information, advice or service.

So, are there any other benefits in choosing to disclose?

The role of the jobcentre advisor is to support you back into employment. They will often have a good idea of the recruitment practices of local companies and how ‘friendly’ they are towards people with convictions. If your advisor has a good understanding of any potential problems you face in getting back into work (for example, an unspent conviction), they’ll be better placed to help you. You could even use this as an opportunity to test out your disclosure technique on your advisor.

Some companies have blanket bans on recruiting people with any unspent convictions, some ban people with certain types of offence. Failing the criminal record criteria isn’t going to secure you a job with these types of employers but, if you’ve not disclosed your conviction to your advisor and they believe you’ve got the relevant skills and experience, they’ll expect you to apply.

What if your conviction is spent?

For many jobs, you don’t need to disclose spent convictions. If these are the jobs you’re focusing on, you could choose to make that clear to your advisor in terms of your job search.

Some jobs, for example a cleaner in a school, are exempt from the Rehabilitation of Offenders Act and mean that you’ll need to disclose both spent and unspent convictions (unless it’s filtered). If you’re not comfortable in disclosing a spent conviction then, providing they know about it, your advisor can steer you away from applying for these types of jobs.

What else should you think about?

By voluntarily disclosing your criminal record, you’re placing a lot of trust in your advisor. However all advisors are bound by job centre confidentiality policies and the Data Protection Act.

Most advisors will welcome your honesty – it will make their job much easier and will hopefully help you both to establish a good working relationship.

If you choose to disclose your spent conviction and you’re only applying for jobs covered by the Rehabilitation of Offenders Act, make sure that your advisor knows that it’s for information purposes only and that there are only certain jobs where you’d need to disclose it.

For more information

  1. For practical self-help information – More information is available on our support getting into worklooking for (and keeping) employment and volunteering and disclosing to employers sections.
  2. Questions – If you have any questions about this, you can contact our helpline.

Can employment law help you if you’re refused a job or been badly treated by your employer as a result of your criminal record?

Anybody with a criminal record will, at one time or another, have come across some form of negativity or discrimination when applying for work.

Many employers simply don’t know enough about criminal record disclosure legislation and have little understanding of what they can and can’t do.

If your conviction is spent, then you will have some rights under the Rehabilitation of Offenders Act (ROA). If however it is unspent or, you are applying for jobs which are exempt from the ROA, then you will have very little legal protection.

If you have been refused a job or been treated badly in the workplace as a result of your criminal record then it’s important that you are clear about what, if any, legal remedies are available to you.

We have updated our information on spent and unspent convictions and employment law which aims to set out the legal options open to you if you find yourself in one of the situations described above.

For more information

What do you do if you receive a conviction whilst in employment?

Most of our information around disclosing to employers looks at how to disclose details of an existing criminal record when you’re applying for work. However, what happens if you receive a caution or conviction when you’ve already got a job?

We’ve produced some new information on receiving a criminal record whilst you’re in employment, which looks at the consequences of receiving a criminal record whilst you’re working and whether you legally need to disclose it to your employer.

Irrespective of the legal position, it may be that you’ll need to look at other factors which may affect whether you disclose to your employer or not. For example:-

  • If there’s been any publicity about your case, you may need to weigh up the chances of your employer finding out about it.
  • If your conviction led to any restrictions, i.e. you may be prevented from going to certain places or working with certain people.
  • If the disposal you receive affects your ability to do your job, i.e. if you’ve lost your driving licence and your job involves driving.

Have a look at our receiving a criminal record whilst you’re in employment page, which features an interesting personal experience and some recent case law.

We hope you find this helpful. Let us know what you think by completing our feedback form.

For more information

  1. For practical self-help information – More information on convictions and employment law.

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