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Data overload...

12th May 2005, Page 38
12th May 2005
Page 38
Page 38, 12th May 2005 — Data overload...
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Which of the following most accurately describes the problem?

Every employer must follow the Data Protection Code when reauffing and employing staff; here's a legal eagle's guide to the rules.

irhe Employment Practices Data Protection Code comes in four parts, and part one offers guidance to employers mocessing data in compliance with the Data 3rotection Act 1998 (DPA) when recruiting ind selecting staff. The DPA and the code apply .o data that is subject to "processing". This in:ludes gathering, accessing, transmitting and iisclosing data — even its destruction counts as mocessing for the purpose of these regs.

The legal requirement on employers is to comply with the DPA itself so the benchmarks Ln the code are designed to ensure compliance with the DPA. Any enforcement action would be based on a failure to meet the requirements Df the DPA itself It is not just employees who are covered by the code: applicants,former applicants,employet& agency workers, casual workers and contract workers are also protected.

The code covers the processing of both personal and sensitive data. Personal data is any form of data which identifies a living person. Sensitive data, on the other hand, is information relating to an individual's life such as racial or ethnic origin; political opinion; religious or similar beliefs; trade union membership; physical or mental health; sex life; or the commission or alleged commission of any offence.

What are the key areas covered by the code for managing data protection? The code states that managing data protection is concerned with setting up methods to protect personal data about workers.

Recruitment and selection

Advertising includes any message used to notify potential applicants of a vacancy via newspapers, radio, TV and the internet. The code sets out the following guidelines: • Prospective applicants should be given the name of the company towhich they will provide their details and how this data will be used.

• Recruitment agencies used to hire staff must identify the name of the agency in the advert.

• Agencies may pass the information to the employer, as long as the applicant is informed that his/her details will be passed on.

Applications

Applications include written responses to specific job advertisments. The code sets out benchmarks for DPA compliance.

• State on an application form to whom the information is being provided and how that information will be used,if it is not self-evident.

• Only seek relevant personal data.

• Explain any checks on this data.

• Provide a secure method for sending and receiving applications. But when a company receives unsolicited applications via e-mail or letter it need only tell the applicant where the application will be kept.

Verification

Verification involves checking that details supplied by applicants are accurate and complete. This could include confirmation of qualifications and financial information.

Benchmarks include telling applicants as soon as possible that any details provided will be verified; obtaining signed consent from the applicant to secure release of any documentation/ information from a third party; giving applicants the chance to make representations if the results of the checks produce discrepancies.

Shortlisting

Employers should make every effort to be consistent in the way personal data is used when shortlisting: • Applicants should be informed if automated shortlisting system will he used as the sole basis for making a decision.

• Ensure any tests used in shortlisting such as psychological tests and handwriting analysis are only used by properly trained personnel.

Interviews

Personal data recorded and retained following an interview should be necessary for the recruitment process itself or for defending the process against legal challenge. Applicants will also be entitled to access to interview notes.

Pre-employment vetting

This means making enquiries from third parties about an applicant's background and circumstances. This should be confined to areas of special risk set out in the legislation.

Keeping recruitment records

Any period of retention must be based on a business need.lhe possibility that an individual might bring a legal action does not, however, justify the indefinite retention of all records relating to workers.

Benchmarks include keeping records of the results of a vetting or verification exercise for a maximum of six months; using discretion when deciding at what point data should no longer be retained; establishing and adhering to record retention periods based on a clear business need; and considering carefully what information is to be transferred to the worker's employment record.

CONTACT:

informationcomm iss i on e r. gov.uk The authors: Jonathan ExtenWright is a partner and Jessica Leather is a solicitor in the Employment Department of City law film DLA Piper Rudnick Gray Cary UK LLP


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