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Pre-employment checks and the Data Protection Act

15 December 2016

It has always been common for employers to carry out some degree of pre-employment checks before making a firm offer of employment. Traditionally these checks have consisted of obtaining references, or asking the preferred candidate to attend a medical.

More recently modern technology has enabled employers to make wider and more detailed checks which often include a criminal record or credit check, and a general social media search.

It is understandable that businesses want to check whether or not candidates pose a threat to the business or to try to identify exaggerated claims of experience, skills or qualifications. However, employers must be alert to their legal duties, in particular those relating to data protection and discrimination.

Personal data obtained during a recruitment process will be subject to the Data Protection Act 1998 (DPA), so it is important employers consider how they process and store this data. The Employment Practices Code (published by the Information Commissioner’s Office) suggests all information is securely stored and destroyed when no longer required or within a six month period. Although the code is not itself legally enforceable, non-compliance may amount to a breach of the DPA and lead to civil proceedings. It is also important to carry out ‘right to work’ checks prior to offering employment; failure to comply with Home Office requirements can result in costly fines.

Research of a candidate’s online profile should be done carefully, as information posted may not be credible or truthful, and relying on it may be in breach of article 8 of the European Convention on Human Rights (right to a private and family life). Any subsequent action could be considered discriminatory and this is important given that discrimination legislation protects job candidates as well as employees. It is possible that an unsuccessful and disgruntled candidate may make a subject access request in an attempt to establish whether discrimination was at play.

Their request will allow them access to all personal data held by you about them and will require you  to provide copies of any files, notes or emails about them that have been created or shared within your organisation. You therefore need to ensure that all emails/notes on file clearly identify objective reasons for declining an application and focus on skills, experience and performance at interview.

An employment law masters’ graduate with extensive experience in employee relations and negotiations, Helen helps the employment team across areas such as legal research, drafting employment policies and tribunal preparation. She also advises businesses on immigration matters and assists them with securing sponsorship licences. Prior to joining the firm she gained experience in collective consultation and redundancy and restructuring exercises and has also worked as a legal researcher for an employment law barrister.

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