The role of the Information Commissioners Office with misleading questions on employment application forms

We were contacted recently by an individual who was concerned about a question being asked about criminal records on a builder’s merchant’s application form, which stated:

  • “As part of our standard procedure we require a police check for every employee. Are you prepared to undergo a police check?

Yes

☐ No 

  • Have you ever been convicted of a criminal offence in the UK or abroad, or have any Court Martial against you?

Yes

☐ No”

We contacted the builder’s merchant’s to raise our concerns about the wording they were using. In particular:

  1. As the company provided no guidance or links to the Rehabilitation of Offenders Act, there may be confusion amongst applicants about whether they needed to disclose their spent cautions or convictions.
  2. Individuals with spent cautions/convictions who didn’t legally need to disclose may be put off from applying because they believed that they were being asked to disclose them.
  3. It was likely that an applicant may disclose more information than was legally necessary, meaning that the builders merchants ran the risk of taking into account something they were not legally allowed to consider.

Having received no response to our correspondence from the builder’s merchants, we raised our concerns with the Information Commissioners Office (ICO), who wrote to them, encouraging them to amend the question on the application form in order to avoid any potential Data Protection Act breaches.

We were subsequently contacted by the builder’s merchants acknowledging our correspondence and informing us that they had amended the questions on their application form to the following:

  • “As part of our standard procedure we require a Basic Disclosure for every employee. Are you prepared to undergo a Basic Disclosure?

Yes

☐ No 

  • Have you ever been convicted of a criminal offence in the UK or abroad, or have any Court Martial against you? You do not have to declare spent convictions as per the Rehabilitation of Offenders Act 1974.

Yes

☐ No”

We felt that the changes made ensured that applicants were now clear that they were not required to disclose any spent convictions, and that a basic disclosure would be carried out (rather than a police check).

Lessons

This case demonstrates how employers often believe they’re asking the correct questions around criminal records when recruiting for new staff, when in fact their questions are misleading and could lead them to holding more information than they are legally entitled to.

Although we always try to work directly with employers, where this is not possible it’s sometimes necessary to report our concerns to organisations such as the Information Commissioners Office to assist us in effecting change to a recruitment process.

Links

Notes about this case study

 

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Christopher Stacey