In short, “yes”. Employers in the Isle of Man can ask prospective employees about their criminal record, however, there should be a clear need for this and employers are required to handle such information in accordance with the Applied GDPR and with appropriate safeguards given the nature of the information.
Should you/can you require a criminal record check?
Employers will usually carry out some form of pre-employment due diligence, including “right to work” checks for immigration and work permit purposes. For some roles and in some industries, a prospective employer may also need to know about a job applicant’s criminal record. A need to do this in the first place should be considered carefully – certain occupations involving care of vulnerable or young persons will require this, as will specified positions in regulated financial services firms or within an applicant to the Isle of Man Gambling Supervision Commission for a licence, certificate or registration, for example.
In other cases, whether an employer makes a job offer conditional on the applicant submitting to a criminal records check may depend on their policy and risk assessment of the role/level of contact with members of the public.
Under the Applied GDPR, as well as the usual requirements to follow the data protection principles when processing personal data (entailing, amongst other things, fair and lawful processing plus keeping data secure), further considerations are relevant in the case of criminal offence data. In effect, these mean that an employer must rely on a condition in Part 2 or Part 3 of Schedule 2 to the GDPR and LED Implementing Regulations 2018. This means, by way of example, that processing can be on the basis of consent or in the substantial public interest for certain specified purposes including safeguarding.
To avoid collecting criminal offence information and excessive personal data of job applicants who are unsuccessful, it is recommended that asking employees about their criminal record and undertaking verification checks are only carried out at a late stage in the recruitment process, eg once short listing has taken place or an offer is made.
How are criminal records checks carried out?
The Isle of Man criminal records checking regime is administered by the UK’s Disclosure and Barring Service (“DBS”) and enables employers to access criminal records information in the form of certificates. This reflects the extension of the UK Police Act 1997 to the Isle of Man by virtue of the Police Act 1997 (Criminal Records) (Isle of Man) Order 2010 (with modifications) and means that there are similarities with the checks that can be carried out in the UK and means of verification.
There are two types of certificates, a “standard” certificate and an “enhanced” certificate.
A standard DBS check shows unspent convictions, cautions, reprimands and final warnings. An enhanced DBS check is the highest level of criminal record check which will identify other information deemed relevant to be disclosed. The standard DBS check can only be applied for by the individual concerned.
An enhanced DBS check should only be applied for when the individual is expected to “engage in regulated activity of a specific nature or in a specified place, frequently, intensively or overnight, or is engaged in a specified role”. In order to obtain an enhanced DBS check, the employer organisation must be registered with the Isle of Man Vetting Bureau, satisfy certain criteria, and enter into a contract with the Isle of Man Vetting Bureau to act fully in accordance with the DBS Code of Practice.
Can an employer ask about “spent” convictions?
The Isle of Man has enacted the Rehabilitation of Offenders Act 2001 (the “ROA”) and the Rehabilitation of Offenders Act (Exceptions) Order 2018 (the “Order”) to ensure that offenders who have not re-offended for a period of time since the date of their conviction are not discriminated against when applying for employment. Section 4(3) of the ROA provides that failure to disclose a spent conviction shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment or for prejudicing him [or her] in any way in any occupation or employment.
Whilst the ROA provides that individuals are not legally required to disclose to an organisation convictions that have become “spent”, there are certain exceptions set out under the Order which entitles employers to ask applicants for details of spent and unspent convictions which are not protected and which the employer may take into consideration when determining suitability for the job. Schedule 1 of the Order lists the types of work, employment and the professions with respect to which an employer can ask about “spent” convictions. It is for the employer to consider whether the type of work falls within one of the specified exceptions. Generally speaking, the permitted exceptions relate to work in “sensitive” areas such as with children and vulnerable adults, law enforcement and the legal system and high level financial positions.
There are a limited number of convictions for more serious offences which are never “rehabilitated” and which are set out in section 2 of the ROA.
As should be understood from the sensitive nature of the data concerned, employers need to take extra care when handling and retaining criminal offence information. Amongst other things:
- appropriate restrictions should be put in place limiting access to relevant records and the confidentiality/sensitivity of such data emphasised to staff who do need to refer to it;
- once the information is no longer needed (bearing in mind any mandatory retention period or ongoing obligation to ensure the reliability and/or fitness of an employee to carry out a specific role), it should be securely deleted;
- criminal records checks should not be stipulated simply because the business as a whole is regulated or its services generally entail working with members of the public – for instance a “back office” role may not justify a criminal record check whereas it may be mandatory or advisable for those in positions of high responsibility and/or trust;
- employees may validly be able to withhold information about spent convictions so in the event an employer learns that an employee has a criminal record, it may need to investigate and take advice as to the implications for continuing to employ that individual before taking any form of action.
