Case study – Thea – “Clear wording on application forms means applicants know what to disclose”

Thea contacted our helpline for some advice in completing a university application form. Thea explained that she had two old cautions which were eligible for filtering (and so would not appear on her enhanced DBS certificate). However, the wording of the university’s statement and question on their application form implied that she needed to disclose these old cautions and she was concerned that she would be refused a place if she did so.

The ‘Criminal Record Disclosure and Professional Registration Information” form that Thea was referring to stated:

Statement“Your chosen route of study is exempt from the provisions of Section 4 (2) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. This means that you must declare ALL criminal convictions, cautions, reprimands or warnings, even if they are spent (e.g. you think they have been removed from the records or were juvenile offences), and include those outside of the United Kingdom.”

Question“Have you ever received any cautions, convictions, reprimands or warnings in the UK or any other country? Has a Court or Court Martial ever convicted you of any offence or are you currently bound over?”

We explained to Thea that as her cautions would not appear on her enhanced DBS certificate then, legally, she didn’t need to disclose them to the university. We agreed to contact the university with recommendations on how to improve the statement and question in order that it complied with data protection legislation and also to ensure that applicants with a criminal record were clear about what they needed (and what they didn’t need) to disclose.

Despite contacting the university on a number of occasions, we received no response and felt that the only option available to us was to raise our concerns with the Information Commissioners Office (ICO).

The ICO agreed that the statement and question did not comply with General Data Protection Regulations (GDPR) and requested that the university review their processes and update the wording on their application forms to reflect that protected cautions/convictions did not need to be disclosed.

The university subsequently contacted us for our advice on improving their application forms. Their statement now makes it very clear that applicants do not need to disclose any protected cautions and/or conviction and the question now states:

Question – “Do you have any convictions, cautions, reprimands or final warnings that are not “protected” as defined by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013)?

 

Lessons

Universities who offer courses in health and social care will be aware that these courses are exempt from the Rehabilitation of Offenders Act. However, there can sometimes be confusion around the need for applicants to disclose cautions/convictions which are ‘protected’.

Without any clear guidance, applicants may over disclose their criminal record which could mean that they are refused a place on a course and the university would hold information which they’re not legally entitled to.

As this case demonstrates, challenging the misleading statement and question ensured that future applicants are protected by data protection legislation and that the university is following this.

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Notes about this case study

This case study relates to Unlock’s casework

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

Published March 2020

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