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25 May 2015

Enforced subject access a criminal offence

Due to strict data protection laws in the UK, an employer cannot gain access to details of an employee's criminal record without the employee's consent.

On 10 March 2015, legislation came into force making it a criminal offence to require an individual to exercise their subject access rights under Section 7 of the Data Protection Act 1998 (DPA) to gain access to information about their convictions and cautions and provide that information as supporting evidence regarding a job application or before entering into a contract for goods, facilities or services.

The Information Commissioner's Office has published guidance explaining the criminal offence, which is created under Section 56 of the DPA. This can be found here. [https://ico.org.uk/media/for-organisations/documents/1042608/enforced-subject-access-s56.pdf]

Chris Brazier, associate in the employment practice at B P Collins, stated: “Enforced subject access will typically occur where a person wishes to see another individual's criminal record but chooses not to use the established legal system for doing so. Committing such an offence in England and Wales can carry an unlimited fine.”

Guidance for employers on requesting criminal record checks for potential employees can be found on the website of the Disclosure and Barring Service.

For advice or guidance on this matter, contact Chris on 01753 279029 or email employmentlaw@bpcollins.co.uk.

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Phone: +44 (0) 1753 889995

Email: enquiries@bpcollins.co.uk

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