Should schools ask applicants to self-disclose criminal records?

Introduction

This post considers when self-disclosure could (and when it probably shouldn’t) play a role in the recruitment process. ‘Self-disclosure’ in this context means individuals providing an employer with details about their criminal record. This is in contrast to official disclosure, which means carrying out criminal record checks using the appropriate government agency – in England & Wales, the Disclosure and Barring Service (DBS).

Recent legal advice provided to The Key suggested that schools should not be asking applicants to self-disclose criminal records. They include tick boxes on application forms and separate disclosure statements in this. This is because schools will be requesting enhanced DBS certificates before making a recruitment decision. This advice is not without critics, and there remains disagreement on how schools ought to apply data protection legislation when asking about criminal records during recruitment.

Ultimately, controllers are accountable for any data they collect and schools will have to demonstrate the necessity of self-disclosure in order to be compliant with data protection law. To help schools with this, we’ve adapted our general guidance for employers on self-disclosure, to provide specific guidance for schools. We will consider the legislation and provide some points for schools to consider when deciding whether they need to ask for self-disclosure.

Data protection law and criminal records

Asking applicants to self-disclose their criminal record information has become part of the standard recruitment process of many employers. Whether a tick box on the application form or part of pre-employment checks, asking has become the norm. Research published by Unlock in October 2018 showed more than 70% of employers ask about criminal records at application stage. As part of that research, we recommended to employers that, given official criminal record checks can be done at the pre-employment stage, they should consider whether asking applicants to complete ‘self-disclosure forms’ is truly necessary. Unlock encourages all employers – including schools and others with statutory safeguarding responsibilities – to ban the box and ask about criminal records at a later stage in the process. This does not compromise your statutory duty and makes it less likely that an applicant will be inadvertently discriminated against. We’ve produced guidance to help employers with this.

Paid roles in schools are exempt from the Rehabilitation of Offenders Act 1974 and therefore eligible for enhanced and barring list checks. Schools nonetheless need to minimise data collection – meaning no more data than necessary should be requested. Most schools ask for written self-disclosure prior to interview, but new legislation throws this practice into question. Employers have always needed to demonstrate that asking about criminal records is both necessary and proportionate. However, the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 have prompted a review of data collection practices.

Schools, as data controllers, are accountable for ensuring they comply with data protection law. The Information Commissioner’s Office (ICO) is likely to advise on how to comply before moving to enforcement action, but recruiters should be aware that the penalties for failure to comply can include an enforcement notice, or a fine of up to €20 million, or 4% of annual revenue for breaches related to the basic principles or lawfulness of processing. Schools are not exempt from fines.

It is hard to envisage a scenario where asking all applicants to self-disclose – say, on an application form – would be necessary and proportionate. If you do this and can explain why, please let us know. Doing so could therefore be considered excessive data collection. Most applicants will not be successful, and employers will then be responsible for managing a large amount of sensitive data. There is no case law yet but schools must demonstrate they are only collecting what is necessary at each stage.

Collecting written self-disclosure prior to interview is common, and convenient, especially where disclosure information is handed over to HR, the Local Authority Designated Officer (LADO) or a safeguarding adviser. However, schools must demonstrate that it is necessary and proportionate to collect self-disclosure at this stage and not later. Schools could instead ask candidates to self-disclose after they are offered the role, or while waiting for the DBS certificate but still need to demonstrate that this is necessary.

Recent ICO advice to an employer suggests asking for self-disclosure is likely to be excessive when DBS checks will take place. Part of the ICO’s reasoning is that the legislation around criminal records disclosure is complex, and applicants may find it difficult to accurately disclose. This advice is case specific but it illustrates that employers must make clear the necessity of collecting information at any stage. Unlock’s interpretation is that schools can ask for self-disclosure, if they can demonstrate why it is necessary.

What is the purpose of self-disclosure?

Self-disclosure can provide applicants with an opportunity to give context and detail on their criminal history and to answer questions about the changes they have made since that time. Employers can seek clarity and reassurance and make decisions based on a fuller account than DBS certificate can provide. Considering criminal records in context is one of the principles of fair recruitment. However, schools sometimes compare self-disclosure with the DBS certificate as an additional test of an applicant’s honesty. In our experience, applicants do make genuine mistakes in disclosing. That might include disclosing something that is not required, not disclosing something that is required, or simply making errors in the dates, wording or details of their criminal record. Recent examples include:

  • Nadeem, who disclosed a single spent conviction for benefit fraud when applying for a regulated role, but whose DBS check showed he was convicted of two counts, dealt with in the same proceedings on the same day and by way of the same penalty.
  • Laura, who needed to disclose a caution on her application for a hospital receptionist role but couldn’t remember the name of the offence she was cautioned for a decade ago. She provided incomplete information as requesting this information from the police could take weeks, by which time the application deadline would have passed.

If the employers in Nadeem or Laura’s case had used self-disclosure as a test, both would probably have been rejected. Is that fair, or proportionate? We don’t think so. In light of the examples above, we consider using self-disclosure as an additional test to be processing outside of that which could be expected by the applicant, and could therefore be in breach of the GDPR. Under data protection principle (a) Lawfulness, fairness and transparency, controllers must not process the data in a way that is unduly detrimental, unexpected or misleading to the individuals concerned.

Whether applicants self-disclose or not, schools should facilitate an open discussion with an applicant before a final decision is made. This means those conducting the disclosure discussion must be familiar with the legislation so they do not wrongly consider information they should ignore.

If you do decide to ask for self-disclosure

If you decide you do need to ask for self-disclosure, bear in mind that the timing of self-disclosure is an important part of demonstrating necessity and proportionality. We recommend it be from the preferred candidate/s only and in personThis ensures that:

  • Applicants are considered on merit
  • You collect only necessary data
  • Recruiters have the opportunity to ask questions and understand context.

The purpose and lawful basis for asking applicants to self-disclose should be set out in your recruitment policy, which should include privacy information for applicants.

Staff should have appropriate training so they can properly assess any information disclosed. For example, protected convictions are old/minor cautions or convictions that, by law, will no longer be disclosed on an enhanced DBS certificate. This may require changes to existing recruitment practice – for example where schools take advice from the local authority on whether a disclosure should be considered at interview.

Keep written records to a minimum. If you do use paper forms for self-disclosure you will need to demonstrate that these are necessary and include them in your data retention schedule to ensure that they are stored/destroyed appropriately. Ensure any forms you use reflect your approach to assessing criminal records and don’t rely on tick boxes or narrow free text fields.

Our recommended practice

  • Consider if and when self disclosure is necessary
  • Understand compliance requirements relating to data collection, retention and security
  • Provide applicants with guidance on disclosure legislation and your policy
  • Staff handling criminal records information should have appropriate training
  • Ensure your policy is GDPR compliant
  • Only use paper forms if necessary and avoid tick boxes or narrow free text fields
  • Have a clear framework for assessing criminal records disclosure, and keep records of decisions made
  • Remember that you are accountable for any processing that takes place.

This post is part of a series of updates we’re making to our practical guidance for employers in light of changing legislation.

You can read our new guidance on self-disclosure for all employers.

You can sign up to our mailing list for updates. We welcome questions, feedback and ideas.

 

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Rachel Tynan