Case study – Sean – My employer tried to adhere to the General Data Protection Regulation (GDPR) but this just caused more confusion

Sean contacted our helpline for some advice in answering a vetting form which he’d been given by a potential employer.

Sean explained that he’d been working for the company as a contractor but was in the process of transferring to being a permanent member of staff. He’d been asked to complete a vetting form which asked for details of his criminal record and for consent to carry out a criminal record check. The form stated that he had the right to decline consent but that if consent were refused the business

“May determine that they are unable to process the application.”

Sean told us that he had a conviction from 10 years ago which was now spent. He didn’t think he needed to disclose it but didn’t want to refuse to have a criminal record check and have the employer discontinue the recruitment process.

From the information Sean had provided, we were able to advise him that the job he was applying for would only be eligible for a basic criminal record check. Therefore, he didn’t need to disclose his spent conviction and, once he’d ascertained the level of check the company were going to undertaken, he could give his consent for a basic DBS check.

Sean contacted us a couple of weeks later to confirm that he’d followed the advice given by Unlock. The employer had carried out a basic DBS check which had come back ‘clean’ and Sean was now working for the company as a permanent staff member.

Sean told us:

“I’d never seen a vetting form written in this way before and I was confused about how to answer the question. Speaking to the advisor at Unlock gave me the confidence to question what check the employer was going to do and understand that I didn’t need to disclose my spent conviction.”

 

Lessons

In May 2018 the General Date Protection Regulation (GDPR) came into force. This new legislation meant that where an employer wanted to process data relating to criminal convictions, they needed to have a lawful basis for doing so, one of which was consent.

However, where an employer uses consent as a basis for processing data, they have to offer genuine choice and allow individuals to refuse to give consent or to withdraw it. As Sean’s employer stipulated very clearly that failure to give consent could have unfavourable consequences, then it’s unlikely they would be able to rely on consent as their lawful basis.

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Notes about this case study

This case study relates to Unlock’s helpline.

Names and details have been changed to protect the identity of those involved.

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