Section 184Prohibition of requirement to produce relevant records

(1) It is an offence for a person (“P1”) to require another person to provide P1 with, or give P1 access to, a relevant record in connection with—

• (a)
  the recruitment of an employee by P1,
• (b)
  the continued employment of a person by P1, or
• (c)
  a contract for the provision of services to P1.

(2) It is an offence for a person (“P2”) to require another person to provide P2 with, or give P2 access to, a relevant record if—

• (a)
  P2 is involved in the provision of goods, facilities or services to the public or a section of the public, and
• (b)
  the requirement is a condition of providing or offering to provide goods, facilities or services to the other person or to a third party.

(3) It is a defence for a person charged with an offence under subsection (1) or (2) to prove that imposing the requirement—

• (a)
  was required or authorised by an enactment, by a rule of law or by the order of a court or tribunal, or
• (b)
  in the particular circumstances, was justified as being in the public interest.

(4) The imposition of the requirement referred to in subsection (1) or (2) is not to be regarded as justified as being in the public interest on the ground that it would assist in the prevention [^F1, investigation] or detection of crime, given [^F2—

• (a)
  Part 5 of the Police Act 1997 (certificates of criminal records etc), and
• (b)
  Part 1 of the Disclosure (Scotland) Act 2020 (disclosure of criminal history and other information).]

(5) In subsections (1) and (2), the references to a person who requires another person to provide or give access to a relevant record include a person who asks another person to do so—

• (a)
  knowing that, in the circumstances, it would be reasonable for the other person to feel obliged to comply with the request, or
• (b)
  being reckless as to whether, in the circumstances, it would be reasonable for the other person to feel obliged to comply with the request,

and the references to a “requirement” in subsections (3) and (4) are to be interpreted accordingly.

(6) In this section—

• “employment” means any employment, including—

  • (a)
    work under a contract for services or as an office-holder,
  • (b)
    work under an apprenticeship,
  • (c)
    work experience as part of a training course or in the course of training for employment, and
  • (d)
    voluntary work,

  and “employee” is to be interpreted accordingly;

• “relevant record” has the meaning given in Schedule 18 and references to a relevant record include—

  • (a)
    a part of such a record, and
  • (b)
    a copy of, or of part of, such a record.