Criminal Record Data: Ensuring Employment & Upholding Data Subject Rights (CRED)

A criminal record has harmful ramifications on people’s financial and social security.
This policy focuses on facilitating access to employment for people with a minor or old criminal conviction. It calls for legal change at the  public level, banning the disclosure of criminal records at such an early stage at the employer level, and the promotion of data subject rights at the individual level through job centres and unions.

Published

2020

Employment

Authors

Fabianna Flores

Poppy Hooper

Maja Milewska

Dala Soubra

Executive Summary

Too frequently, employers in the United Kingdom undermine the qualifications, skills, and experiences of applicants with anoldorminorcriminalor arrest record, imposing systems at the initial stage of the application process to filter these individuals out. This makes it impossible for applicants to explain or contextualise themselves and to move forward in the employment cycle. This only leads to further prejudice against those with criminal records and perpetuates discrimination against BAME candidates, who are disproportionately affected by criminal records.


The General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA18) came into force on May 25th, 2018 and apply to the processing of all personal data within the EU. Personal data pertaining to information processed in connection with the criminal justice system is protected under the DPA 18. Most jobs fall under the Rehabilitation of Offenders Act 1974 (ROA 1974), which gives individuals with spent convictions and cautions the right not to disclose them when applying for jobs. Most employers must carry out a criminal records check only at the last stage of employment to ensure ‘data minimisation’. Legal regulations assert that personal data must be processed transparently and this information should be collected for legitimate and necessary purposes only. If an employer fails to comply with this, they could be fined up to €20 million or 4% of their company’s annual turnover (Unlock, 2018a).


Despite the introduction of this data protection regime, numerous issues remain during the collection, recording and dissemination of one’s criminal or arrest records. Many employers are either unaware or ignorant of their legal obligations, resulting in many job applicants being unnecessarily questioned about their convictions. Consequently, one’s ability to obtain employment can be severely affected by the mishandling or misuse of criminal records. In the UK, half of the respondents in a YouGov survey stated they would not consider hiring an offender or an ex-offender (Halliday, 2019). This is compounded by the fact that a record states only that an arrest was made - the lack of detail and further information leads to seriously mistaken assumptions about the nature of the arrest and works particularly to the disadvantage of BAME candidates.


The policies in this proposal tackle issues at the publiclevel, the company level, and the individual level. First, MPs should amend the ROA 1974 by making it more compliant with the key principles of the DPA 2018, primarily data storage limitation. Secondly, companies and employers within the UK should review their hiring process and ‘Ban the Box,’ thereby removing the disclosure of personal criminal record data at the application stage. Finally, for increased transparency, job centres and unions should increase data subjects’ awareness of the privacy policy and data rights under the DPA 2018 for those with criminal records.