Sweden’s Employment Ministry has proposed curtailing employers’ ability to require jobseekers to reveal their criminal records as part of the recruitment process. In a March 1 statement, the ministry said that a proposed law would “improve the ability of those convicted of a crime to reintegrate into society.” An assessment will now be carried out, the ministry said, that will define the specific circumstances under which a jobseeker can be required to produce a criminal record certificate.
Although individuals are permitted to access their own criminal records, the current rules do not generally allow employers direct access to the nation’s criminal record registry, though exemptions exist in, for example, childcare and parts of the financial sector. According to the ministry’s figures, the number of individuals requesting a criminal record certificate increased from around 40,000 in 2003 to over 286,000 in 2017. The main purpose of such requests, the ministry said, is to demonstrate to potential employers that a jobseeker does not have a criminal record. Under the proposed new rules, an employer may only request such information if specific legal conditions are met.
No ‘Explicit Right’ to Criminal Records
“A criminal record check is not required by law for all jobs and an employer does not have an explicit right to require an employee to provide a criminal record in paper form,” attorney Fredrik Dahl of the Ving law firm told Bloomberg Law March 8. “However, it is not unusual for an employer to request that a jobseeker provide a paper version of a criminal record. As the employer has the freedom to decide recruitment policy, the individual can be excluded from the process if he or she refuses to comply with such a request.”
“A similar proposal from 2014 was not adopted as law as it proved very difficult to draft the language and apply the proposed changes in a clear way,” Dahl said. “Previous assessments have concluded that a prohibition against criminal record checks would entail extending the constitutional grounds for requiring such checks to new work sectors and ensuring that those who have a real need for such checks continue to be allowed to require them. This new assessment will examine this area further and decide, for example, whether a prohibition on conducting criminal records checks in certain work sectors should be introduced and whether the legal requirement for criminal record checks should be extended to other work sectors”
No ‘Right to Be Forgotten’
Sweden’s Data Protection Act prohibits employers from collecting and processing criminal record information by electronic means, Dahl pointed out. However, the majority of that law’s provisions do not need to be applied when personal data take the form of “unstructured material” such as electronic and paper documents and emails. Under the forthcoming EU General Data Protection Regulation (GDPR), Dahl said, data related to criminal records may only be processed by official authorities or when the processing is authorized by national law.
“It should be noted that it is rarely beneficial to store such data in the absence of any legal requirement to do so,” Dahl said. “However, the GDPR will not prevent an employer from asking an applicant to bring a criminal record certificate to the interview to be viewed jointly.”
While criminal convictions can expire from the Swedish registry, Catharina Fernquist, head of unit at the Swedish Data Protection Agency, told Bloomberg Law March 8 that no “right to be forgotten” exists with regard to criminal convictions, and this will not change after the May 25, 2018, enactment of the GDPR. As no law has yet been drafted, she said, her agency has not published an opinion on the ministry’s proposal.
“There are a number of areas where management should have access to such information before employment commences,” Tomas Undin, head of negotiation at the Swedish Trade Federation, told Bloomberg Law March 8. “Convictions may show that the jobseeker is inappropriate for the role. Sweden’s Data Protection Act and the GDPR both limit employers’ ability to process data on criminal convictions. Employers do not retain such information once it is disclosed.”
“We believe there is broad support for this in the parliament, but that said, there’s no specific proposal on the table yet,” a ministry official told Bloomberg Law March 8.
A new bill will be drafted following the completion of the assessment, the official said, which is due by Jan. 31, 2019.