Criminal Record Check

A new government inquiry has suggested that employers and recruiters should be prohibited from requiring job applicants to provide a Criminal Record Check . The same shall apply for those seeking internships, as well as, agency and temporary employment positions. Those who violate the ban should pay compensation to the job seeker.

Data held within criminal records is subject to absolute confidentiality, which means that data from the Register may only be disclosed if it is specifically prescribed by law. The purpose of the confidentiality is to protect individuals. Data on the register can be accessed by the individual it concerns and it’s common, during the recruitment process, for employers to request that job seekers provide an extract from their criminal record, a so-called informal background check. If, for whatever reason, the job seeker does not agree to show this extract then the employer has the right to deny employment. The same applies if the criminal record contains information that the employer deems unacceptable. Currently, this situation is not subject to any measures that prevent against discrimination.

The study argues that the employer’s request abuses the data subject’s right to transparency and that the procedure is contrary to the Government’s intentions as expressed in connection with previous confidentiality provisions. The report also believes that it is important that, in order for convicted persons to be rehabilitated, the former crime should not hinder the person’s job prospects, unless this is objectively justified.

The report recognises that employers have an interest in the records, including when recruiting employees who will be entrusted with highly influential roles, such as CEOs, CFOs or other senior executives. However, to balance the respective interests of the employer, the jobseeker and wider society, the Commission believes that the employer’s record check should “in principle only be considered in cases where the check is justified by a need to protect public interests, in some international situations and for work with vulnerable people. ”

The issue of integrity in the workplace has already been investigated a number of times but none of the proposals have previously resulted in legislation. It therefore remains to be seen whether the present proposals will be drafted into legislation. It is, however, clear that a change in the law would lead to an increased risk for many employers which, ultimately, would likely lead to the increased monitoring of employees and an increase in the number of examinations and temporary employments. In the wake of Lexbase and similar services, you can now request for a legal ban of records which have no practical effect at all.

Thomas Ogard
Lawyer, Employment law specialist at Moll Wendén

Published: Sydsvenskt Näringsliv (Nr.1 2015)