Robert contacted us about a job with a music school. The job was exempt from the Rehabilitation of Offenders Act as it involved working with young people and an enhanced Disclosure and Barring Service check would be required for the successful applicant. However, applicants are entitled to withhold information about protected (or filtered) cautions or convictions even when applying for exempt roles.  

The application form did not provide any guidance around protected cautions and convictions and instead advised applicants: 

‘…you must disclose spent and unspent convictions, cautions, reprimands and warnings. If after the interview stages it is decided to offer you a post a check will be undertaken with the DBS prior to confirmation of your appointment. Failure to disclose information is an offence and will result in dismissal from the role. It may also result in referral to the Police.’  

We contacted the employer setting out our concerns that the application form could mislead applicants with filtered or protected convictions, cautions, reprimands or final warnings and who therefore did not have to disclose. 

A few weeks later the employer contacted us to say they had changed the wording on the form and provided us with a copy of their updated application form which now asked: 

Do you have any convictions, cautions, reprimands or final warnings that are not protected under the Rehabilitation of Offenders Act 1974 (Exceptions Order 1975) (as amended in 2013)? 

Lessons 

This case shows how employers can sometimes ask misleading questions about criminal records. The filtering rules have been in place for several years but the GDPR sets out a clear responsibility for data controllers to make sure they are only collecting necessary data.  

Asking about protected cautions or convictions is a breach of the Rehabilitation of Offenders Act. It is also likely to be excessive data collection. This could mean they are breaching the GDPR and Data Protection Act 2018 and may be liable to financial penalties.

Links 

• We have guidance regarding the wording of questions that ask about criminal records. 
• Read more about the GDPR and how it applies to recruitment

Notes about this case study 

• This case study relates to the work we’re doing to support and challenge employers as part of our work on fair access to employment. 
• Names and details have been changed to protect the identity of those involved.