Criminal record checks by employers

The Data Protection Act 1998 makes "enforced subject access" unlawful. It is a criminal offence to force an individual to provide a criminal record check during the recruitment process or for continued employment, unless the employer is under a legal requirement to make the check or it can be justified in the public interest.

A new system of checks is currently being implemented in the UK and will introduce three new levels of checks. The Scottish Criminal Record Office (SCRO) will be responsible for the new scheme in Scotland. (In England the Criminal Records Bureau will deal with requests for checks)

There will be three different levels of criminal record check and related certificates under the Act:-

A Criminal Conviction Certificate (CCCs) – This is the basic certificate and will show all convictions held at national level which are not "spent" under Rehabilitation of Offenders Act 1974. This will only be issued to individuals and not employers.

A Criminal Records Certificate (CRCs) – This is for people who have regular contact with children, the elderly, sick or handicapped people and others employed in sensitive areas and professions. This certificate will include details of convictions including those "spent" under the Rehabilitation of Offenders Act 1974.

An Enhanced Criminal Record Certificate (ECRCs) – This is for those applying for positions which involve regular caring for, training, supervising or being in sole charge of children and for those seeking gaming and lottery licences or for those being considered for judicial appointments. This certificate will contain "spent" and "unspent" convictions but will also include relevant non-conviction information from local police records.

Any employer will be permitted to ask a job applicant to produce a CCC but cannot force an individual to do so. For the two more detailed checks (CRCs and ECRCs), these require the employer to have registered with SCRO and the consent of the individual concerned.

SCRO will determine which employers will have access to CRCs and ECRCs and we understand that the registration process will begin in around October 2001 and the full service should be up and running by January 2002.

SCRO are running seminars in August for those intending to register.

There will be charges for the provision of certificates (so far the sums of £5, £10 and £12 have been suggested).

In her annual report published last week the Information Commissioner (formerly the Data Protection Commissioner) highlighted problems with the accuracy and timeliness of existing checks and thinks there is a real risk that details of convictions may not appear on certificates and successful appeals may not be taken into account. Attempts to remedy the problems identified are underway and the Commissioner is keeping the matter under close scrutiny. This may of course have a knock-on effect on the commencement dates for the new scheme.

For more information, contact Alan Masson, tel. 0131 229 5046
This document is for general guidance and research purposes only, and does not purport to give professional advice. Please check the date at the top of the article; the Workplace Law Network retains historic articles for general research.