Data Privacy Law in the UK, Part III: Employment Background Checks and Monitoring

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

In parts one and two of this series summarizing data protection law in the United Kingdom, we looked at the data protection principles to which employers must adhere in relation to obtaining, holding, or disposing of personal data, including sending it outside the European Union (EU).

In this final part of our series on data protections laws in the United Kingdom we examine the practical application of the UK’s data protection rules on background checks and monitoring.

Background Checks

During the course of conducting background checks, which may, for example, involve obtaining references, Internet screening, or checking a candidate’s criminal record, an employer will process a significant amount of personal data.

When requesting a reference or confidential personal information from a former employer or a third party, employers should notify the candidate and, in the case of the latter, the employer should obtain the candidate’s permission or written consent.

If undertaking Internet screening, the first and fourth data protection principles, which require fair and lawful processing and accuracy respectively, are particularly important. Although information obtained through online searches is generally available to the public, it will still usually be necessary to inform candidates of the intention to obtain data from online sources. Further, particular care should be taken to ensure that information obtained online is accurate and relates to the relevant individual before relying on it during the recruitment process.

In the United Kingdom employers can request a criminal records check on individuals who fulfill certain roles in an organization—a financial services position, for example, or a position dealing with children or vulnerable adults—subject to the employee’s consent. Such checks are often an important tool for employers to use when short-listing andverifying candidates. The Data Protection Act does not prevent employers from conducting such checks. However, employers should only perform checks on prior convictions for “specified and lawful purposes,” or in other words, if they are relevant for the role.

A standard criminal records check will show details of an individual’s convictions, cautions, reprimands, or warnings recorded on police central records and include both “spent” and “unspent” convictions. (A conviction is spent when the offender has not re-offended for a specific length of time and is considered to be rehabilitated.) The general rule is that a spent conviction need not be disclosed to an employer, and an employer must not refuse to employ the person because of a spent conviction. Therefore, employers should carefully consider the nature of the conviction and whether it makes the individual unsuitable for the role.

As a general point, employers should note that the UK’s data protection regulator, the Information Commissioner’s Office (ICO), generally recommends that employers confine the scope of comprehensive vetting and/or background checks to the candidate or candidates selected for the job. Employers should not engage in pre-employment vetting for all short-listed candidates.

Finally, as a matter of best practice, employers should provide a secure method for storing recruitment records, including restricting access to the record obtained during the background checks. ICO guidance recommends that such records be kept for between three and six months following the recruitment procedure before being securely destroyed. The justification for up to a six-month retention period is that the maximum period within which an unsuccessful applicant may bring a claim in relation to a recruitment process will usually be six months. Any information about successful applicants that is not relevant to the ongoing relationship should be deleted.

Monitoring at Work

At some point during the employment relationship it may be necessary for an employer to undertake surveillance or monitor employees’ activities. For example, an employer may want to do this if it suspects that an employee is acting in breach of confidence or engaging in unlawful activity. Although permissible, monitoring must be undertaken within the limits imposed by the principles of the Data Protection Act.

Although some employers secretly monitor employees, this is rarely legal and usually employers must take reasonable steps to inform employees that monitoring may occur, the type of activity that may be monitored, and why monitoring is necessary.

To use the most common example of monitoring activity—the monitoring of employees’ electronic communications at work—an employer may legally monitor the use of electronic communications under the following circumstances:

  • the monitoring relates to the business;
  • the equipment being monitored is provided partly or wholly for work; and
  • the employer has informed employees of the nature, extent, and reason for any monitoring.

Employers can usually satisfy the requirement to inform employees of the possibility that they will be monitored through an appropriate policy in the employee handbook. Indeed, it is often important for an employer to have such a policy in order to help demonstrate compliance with the Data Protection Act in the event of a complaint relating to monitoring.

If an employer sticks to the general rules listed above and has identified any negative effects that monitoring may have on staff (often referred to in the United Kingdom as an “Impact Assessment”), employee consent will usually not be needed before engaging in monitoring activity. However, employers must always have a good business reason for monitoring employees and should seek appropriate legal advice if this issue is not clear.

Conclusion

In addition to potential penalties and reputational damage (highlighted in part one of this series), significant breaches of privacy—whether in relation to background checks, monitoring, or otherwise—that occur during the employment relationship can form the basis of other serious legal claims, such as claims for constructive dismissal under the UK’s unfair dismissal legislation. Further, in light of the proposed changes to European data protection law, which will likely give data protection regulators new powers to issue significant fines for data privacy breaches, it will soon be increasingly important for employers to comply with data privacy laws.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.