Prohibition on Enforced Subject Access

From 10 March 2015, it is unlawful for employers to require job candidates and existing employees to use their subject access rights under the Data Protection Act 1998 to provide details of convictions and cautions as a condition of employment or engagement.

Also, minor changes have been made to the list of jobs that are excluded from the Rehabilitation of Offenders Act 1974.  For certain types of employment, it is lawful to ask questions at interview about spent convictions and to reject a person for employment on the grounds of a spent conviction. In relation to applications for one of the excluded job categories, job applicants are obliged to disclose all convictions, whether or not they are spent.

However, in these circumstances, the employer should explain to the job applicant that the job falls into one of the excluded categories and advise him or her that disclosure of any spent convictions is required for that job.

The list below includes the main excluded job categories:

  • healthcare professional;
  • veterinary surgeon;
  • solicitor, barrister (England and Wales);
  • chartered accountant, certified accountant;
  • police constable, prison officer, providers of probation services;
  • post involving security management or the investigation of fraud, corruption or other unlawful activity, in the NHS (England and Wales);
  • social services personnel;
  • prison and remand centre personnel;
  • post involving schooling or other dealings with young people (including teachers in England and Wales);
  • post in a children’s home or residential family centre;
  • post involving adoption or fostering services where the holder will have contact with children or access to personal or sensitive information about children;
  • post involving management of a childminder agency;
  • post in a childminder agency where the holder will have contact with children for whom childminding or day care is provided or access to sensitive or personal information about such children; and
  • post involving regulated activity with children or vulnerable adults within the meaning of the Safeguarding Vulnerable Groups Act 2006 (including within that meaning prior to the amendments made by the Protection of Freedoms Act 2012 that took effect from 10 September 2012.