New data protection law makes it more difficult to seek self-disclosure of criminal records during the job application process. Data protection should not be a barrier to safeguarding but, under the GDPR, you need to justify that self-disclosure is both ‘necessary and proportionate’. Our view is that it’s very unlikely that schools will be able to justify self-disclosure before the final stages of the process. Instead, their safeguarding responsibilities are met by the DBS check at the point of making a conditional job offer, and careful follow-up discussion. We therefore recommend that schools avoid discussing an applicant’s criminal record until after the DBS check.
We’ve come to our view based on advice from 2 law firms, support from the charity Unlock, as well as rigorous interrogation of the GDPR, DPA 2018 and published DfE guidance on safeguarding, recruitment and data protection. We are in discussions with the Information Commissioners Office at present.
This is a new and complex area of law and we know that opinion is currently mixed. Our only aim is to establish a definitive position that the whole sector can confidently advocate as both legal and practical. We want schools to be able to move forward with confidence. That’s why we’re in discussions with the DfE, to make sure we cut through the confusion together and get a clear answer for schools, as quickly as possible. The DfE is currently discussing this recent legislation with its lawyers.
We’re doing everything we can to help our schools with their recruitment season and to safeguard children effectively within the remit of current legislation. If you’re a member of The Key, rest assured that as soon as we know any more, you’ll know too.