Q&As

Where, during recruitment, the employer processes personal data relating to an applicant’s criminal convictions or offences, is the requirement in Data Protection Act 2018, Sch 1 Pt 2, para 12(1)(b) (that, in the circumstances, the controller cannot reasonably be expected to obtain the consent of the data subject to the processing) met, given the imbalance of power between employer and employee?

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Published on LexisPSL on 25/04/2019

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • Where, during recruitment, the employer processes personal data relating to an applicant’s criminal convictions or offences, is the requirement in Data Protection Act 2018, Sch 1 Pt 2, para 12(1)(b) (that, in the circumstances, the controller cannot reasonably be expected to obtain the consent of the data subject to the processing) met, given the imbalance of power between employer and employee?

Where, during recruitment, the employer processes personal data relating to an applicant’s criminal convictions or offences, is the requirement in Data Protection Act 2018, Sch 1 Pt 2, para 12(1)(b) (that, in the circumstances, the controller cannot reasonably be expected to obtain the consent of the data subject to the processing) met, given the imbalance of power between employer and employee?

Where an employer asks an applicant or prospective employee questions about their criminal record, or carries out a Disclosure and Barring Service (DBS) check, the employer will be processing personal data relating to criminal convictions and offences within the meaning of Regulation (EU) 2016/679, the General Data Protection Regulation (GDPR).

For further information on asking questions and carrying out DBS checks generally, see Practice Note: Criminal records—asking questions and DBS checks.

References to personal data relating to criminal convictions and offences or related security measures include personal data relating to:

  1. the alleged commission of offences by the data subject, or

  2. proceedings for an offence committed or alleged to have been committed by the data subject or the disposal of such proceedings, including sentencing

Processing of personal data relating to criminal convictions and offences or related security measures based on any of the lawful processing conditions in Article 6(1) of Regulation (EU) 2016/679, GDPR, may only be carried out:

  1. under the control of official authority, or

  2. when the

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