Change to the Data Protection Act 1998

Section 56 of the Data Protection Act 1998 will come into force on 10 March 2015. This will make it illegal for an employer to require job applicants to obtain a copy of their criminal record by means of a subject access request.

Section 56 is designed to prevent employers (or anyone else) forcing an individual to make a subject access request about themselves. This might arise where an employer forces a prospective employee to make a request and provide them with the results before deciding whether or not to employ them. Section 56 makes this unlawful.

A subject access request to the Police National Computer will either provide a certificate stating that there is currently no information held about an individual on the Police National Computer, or it will provide a list of all information held on the computer (including all convictions - regardless of whether they are spent or not - and intelligence matters including not guilty verdicts, cautions, reprimands, final warnings, No Further Action decisions and fixed penalty notices for disorder). This is not the same as making a criminal records check, which is still permitted. Employers can therefore still ask for basic, enhanced or standard criminal record checks through the DBS/Disclosure Scotland, without infringing Section 56 of the Data Protection Act 1998.

If you would like to discuss this or any other employment issue, please do not hesitate to contact any member of the Employment team.