Unlock complaint leads to ruling that the Disclosure and Barring Service breached the Data Protection Act

We’re pleased to report that the Information Commissioners Office (ICO) has today issued a press release which sets out their ruling that the Disclosure and Barring Service (DBS) has breached the Data Protection Action after failing to stop collecting information about criminal conviction data that was no longer required because of a filtering regime that was introduced in May 2013.

The DBS hadn’t updated their application forms, and so although the ‘filtering’ process meant that certain cautions and convictions are no longer disclosed on standard and enhanced checks, the DBS were still asking whether applicants had “ever been convicted of a criminal offence or received a caution…” as part of their application form. The result of this was that employers were finding out information which they weren’t entitled to know about.

We made the original complaint to the ICO in September 2013, after our helpline had received a number of calls about this problem. In particular, we highlighted two cases where individuals had disclosed information they no longer needed to disclose, but had subsequently had their offers of employment withdrawn. The two cases are explained in more detail below.

Christopher Stacey, Co-Director at Unlock, said; “We’re pleased to see that the DBS has responded to this issue by updating their application form and improving their guidance to applicants. It is important that people with convictions are able to understand what they do and don’t have to disclose during the recruitment process, and the DBS have an important part to play to make this clear and easy to understand.”

“It remains difficult for people to find out whether a caution or conviction that they have is eligible for filtering, and we would like to see the DBS respond to this issue by introducing a system which allows individuals to obtain a copy of their DBS certificate before they start applying for jobs or volunteer work, so that they can be confident that they’re disclosing the appropriate level of information. We would also like to encourage employers that are entitled to carry out standard and enhanced checks to make sure that they look at their own recruitment processes and make sure that they are only asking about cautions and convictions that would not be filtered by the DBS”.

Brief details of the cases that formed part of our complaint to the ICO

Case One
An individual ticked ‘Yes’ to the question because the question hadn’t changed, and they didn’t see the accompanying guidance. To them, it was clear what question they were being asked, and so despite their conviction being one that would be filtered, they ticked ‘Yes’ which meant, because they handed the form back to the employer to submit, they had disclosed they had a conviction to the employer. The employer asked further questions about this, and decided to withdraw the job offer.

Case Two
An individual ticked ‘Yes’ to this question because they were not sure whether their conviction would be filtered. As there was no other means of definitively finding out whether it would be filtered or not, they erred on the side of caution and ticked ‘Yes’, believing that, if it would be filtered, it wouldn’t matter what they put. It turned out that their conviction was due to be filtered, but because they had ticked yes, their employer got to find out when they handed the form back, and subsequently decided to withdraw the job offer.

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Notes to editors

1. Press/media
2. More information relating to the filtering process is available here.