Collecting criminal records during recruitment not GDPR-compliant

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Charity Unlock has issued guidance for employers around hiring candidates with criminal records

Employers collecting criminal record information on candidates during the initial application stage are breaching data protection laws, campaigners have said.

Unlock, a charity for people with convictions, has published new guidance for employers to ensure that their policies and practices on collecting criminal record information are compliant with the General Data Protection Regulation (GDPR) and Data Protection Act (DPA).

The guidance sets out a three-stage process for employers to follow for determining if, when, and how they should ask about criminal records.

Key points of the guidance include that: collecting criminal records at application stage is unlikely to be necessary and therefore is in breach of the GDPR and the DPA, collecting at any stage must be justified by a link between purpose and processing, applicants have data subject rights that must be upheld, and that explaining how you’ll uphold applicants’ rights is key to meeting the conditions of processing.

While the full implications of the GDPR are still being embedded it is clear that data controllers must comply with the new law, Unlock said.

It is estimated that 11 million people in the UK have a criminal record. However, Christopher Stacey, co-director of Unlock, said employers frequently dismiss candidates because of their criminal records, despite their commonality.

“Too often employers overlook skills, experience and qualifications if an applicant declares they have a criminal record. Yet more than 11 million people in the UK have a criminal record. The GDPR and the Data Protection Act 2018 make it clear that asking about criminal records must be necessary – if it isn’t necessary it isn’t compliant,” he said.

“This [Unlock's] guidance makes it clear that the current common practice of many large employers of asking about criminal records at the initial application stage needs to change to ensure compliance with data protection law. That’s why we’re strongly encouraging employers to no longer ask about criminal records at application stage.”

Stacey added that this presents an opportunity for employers to rethink their approach towards recruiting those with criminal convictions.

"Fair recruitment is about more than just removing a question. Employers are required to justify why they are asking about criminal records at any stage in the process, and we recommend employers to use this as an opportunity to think about whether they need to ask about criminal records at all and, if they do, how they manage the process, so they don't miss out on talented and qualified applicants with previous convictions.”

Jessica Rose, Business in the Community's Ban the Box campaign manager – which calls for removal of the tick-box for criminal records on application forms – urged employers to follow the guide.

"Unlock's straightforward and practical guide for employers collecting criminal records data makes it clear that Ban the Box is the right approach for recruitment under the GDPR. We urge employers to read the guide and to move any necessary questions about criminal convictions to later in the recruitment process,” she said.

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