Case study – Successfully challenging a misleading question on a college application form

We were recently contacted by an individual who was concerned about a question relating to criminal records on a generic college application form. This asked:

“Do you have any criminal convictions, cautions, reprimands, final warnings or prosecutions pending?”

The individual felt that the college should be a lot more specific about what they needed an applicant to disclose as the current wording could potentially lead an individual to disclose more than they needed to.

We contacted the college to raise the following concerns:

  1. The college’s current approach does not appear to be complaint with the General Data Protection Regulation (GDPR) as it doesn’t distinguish between DBS and non-DBS courses.
  2. The criminal record question was potentially misleading and gave very little guidance about what applicants needed to disclose for which course. This could lead applicants to disclose convictions which they didn’t need to, specifically those which were spent under the Rehabilitation of Offenders Act.
  3. There was a risk that the college could take something into account which they were not legally allowed to consider which could potentially lead to action being taken against them under data protection legislation.

The college informed us that they had been reviewing their application form as they were aware that the wording was possibly inaccurate. The review resulted in their amending their criminal record question to:

“Do you have any convictions that are not yet spent under the Rehabilitation of Offenders Act 1974?  

Do you have any convictions, cautions, reprimands or final warnings which are spent but not protected as defined by the Rehabilitation of Offenders Act (Exceptions) Order 1975 (as amended in 2013)? (For courses that involve working with children or vulnerable adults)”.

Lessons

This case demonstrates how colleges are often unclear about what questions they can ask about criminal records.

Notes about this case study

This case study relates to our work with other organisations.

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

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