Kate retired from RWA in 2020.
Pre-employment Background Checks and Proportionality
I am becoming increasingly concerned at the amount of data that employers are requesting on the application forms that they use for prospective employees.
It is vital to remember that you, as an employer, are bound by data protection obligations and often this is not recognised on application forms. Any evidence of an employee’s right to work in the UK and any financial or criminal information is sensitive personal information and must be treated as such. Whilst certain roles (particularly those in the caring professions and involving vulnerable adults and children, for example) may require the employer to check an applicant's criminal background, this is unlikely to be relevant for the majority of insurance brokers, since the request for information must be ‘proportionate’ to the role.
The fact is that employers are not entitled to request information regarding an applicant's criminal record without a reason for doing so. Employers should only request information regarding an applicant's criminal history if it can be justified in terms of the role offered. As an example, those offences which might have a direct bearing on suitability for the role in question. If the role carries financial responsibilities, the employer could show proportionality by limiting the collection of information to convictions for fraud.
Remember too, that an employer should not ask for 'spent' convictions to be disclosed unless the job is covered by the Exceptions Order to the Rehabilitation of Offenders Act 1974 (e.g. medical practitioners, solicitors, accountants). Spent convictions are treated differently, and employers should also be aware that there may be additional sanctions under the Rehabilitation of Offenders Act separate and in addition to any data protection consequences.
Importantly, in March 2015, s56 of the DPA became law, making it a criminal offence for an employer or prospective employer to force its employees or job applicants to obtain a copy of their criminal records by means of a subject access request and then supply it to the employer in connection with their recruitment or continuing employment. It also prevents any person from requiring another person to make this kind of subject access request as a pre-condition to supplying them with goods or services. The point of this is to prevent details of spent convictions being released and to ensure that these sorts of criminal records searches are only carried out when appropriate and only under the criminal records disclosure regime operated by the DBS.
Credit Checks
Depending on the role and the company's business, employers may want to conduct a credit check against an applicant to check their financial background.
However, as with criminal background checks, the search should be proportionate. It is more likely to be considered necessary and appropriate for an employer to perform a credit check against an applicant who is applying for a senior role involving financial duties - for example, a financial director - as opposed to a junior role or a role which does not contain any financial responsibilities – for example, a junior account handler.
The more data that an employer collects regarding an applicant, the more they will 'know' about the candidate when deciding whether or not to offer employment. However, in doing so, employers stand a greater chance of breaching their obligations under the DPA and other laws.
Consider the proportionality of any searches carried out and remember to focus on the candidate’s ability to do the job. Proportionality varies from job to job and will depend on your firm’s business, the role itself and the responsibilities within the role. And don’t even think about typing an applicant's name into Facebook.