Asking applicants to self-disclose can be deemed excessive, says ICO

Last month we published research that showed almost three-quarters of employers ask about criminal records at application stage. Being asked to self-disclose puts off applicants. Unlock encourages employers to consider whether they need to ask about criminal records at all. If you need to ask, questions should be targeted – for example, only asking at offer stage. Under the GDPR, the purpose of asking must be set out in your privacy policy, along with the lawful basis and condition of processing.

Employers should also consider whether they will carry out DBS checks and, if so, at what level. If DBS checks will form part of the recruitment process, applicants should be made aware at application stage.

A recent case saw Unlock refer an employer’s policy on self-disclosure to the ICO. In their response, the ICO said:

“In general, an organisation asking people to self-declare criminal offence data when it is going to be undertaking DBS checks can be deemed excessive and due to the complexity of the legislation, it could potentially receive inaccurate information. Good practice would be undertaking checks when individuals have a conditional offer rather than at the interview stage.”

You can see an extract of the ICO’s response below:

In light of this advice, employers who plan to carry out DBS checks should consider whether they need to ask for applicants to self-disclose their criminal record ahead of the DBS check. If the DBS check reveals information, this can begin a
conversation with the individual about the content and relevance. It is unlikely that there will be many circumstances when it is necessary to ask earlier in the process, and employers should consider amendments to their application forms and processes. We will soon be publishing more specific information on approaching self-disclosure.


Written by Rachel Tynan

More information

  1. Read Unlock’s Principles for Fair Chance Recruitment
  2. Read more about Unlock’s project Fair Access to Employment
  3. Read Unlock’s guidance for employers on complying with GDPR and data protection when asking about criminal records
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