Pre-Employment Screening in the Security Industry

There are numerous guides on pre-employment screening.

What is consistent throughout these guides is the need to obtain the consent of the individual that you wish to screen. In this paper I would like to address this question of consent and whether the security industry needs to re-think their approach to screening.

Consent is not defined in the Data Protection Act 1998 (DPA).  Article 2(h) of the EC Directive 95/46/EC from which the DPA comes does define it:-

“Any freely given, specific and informed indication of his wishes by which the Data Subject (a living individual) signifies his agreement to personal data relating to him, being processed.”

Consent is one of the grounds on which personal data may be processed lawfully.  However, it must be realised that consent given can also be taken away.

You might like to consider the following principles:

“No one can consent to something of which he has no knowledge. (Have you fully explained to me what you will do with my application form?)  Consent may be expressed or inferred from some relevant action (implied consent) but cannot be inferred from silence.  (Attorney General –v- Jonathan Cape [The] “Crossman Diaries” case) (1975).  All E.R.484.

Consent involves some affirmative acceptance, not merely a standing by an absence of objection.  The affirmative acceptance may be in writing, which is the clearest obviously; it may be oral; it may conceivably even be by conduct, such as nodding the head in a specific way in response to an express request for consent.  But it must be something more than merely standing by and not objecting. (Bell –v- Alfred Franks & Bartlett Co. Ltd. [1980]) 1 All E.R.356.”

A person cannot consent to a contract if he is incapable of understanding the nature of the contract.  This will be applicable to a contract of employment where the person being employed was of such an intellect that the language of the contract would be intelligible to him.

It is interesting to note that when the Data Protection Bill was progressing through the House of Lords, Lord Williams of Mostyn, when asked why no definition of consent had been included in the legislation, stated that it wasn’t considered necessary because of the existing approach by the courts.

The Article 29 Working Party (Europes Data Protection Commissioners) suggested that consent given to uses of personal data as part of an employment contract is not freely given.

I suggest this may be a step too far.  The basis of a contractual relationship is that one party gives something in order to gain something from the other party.

However it should be understood that because an individual gives consent for the processing of his personal data it does not mean to that you can process it.   That is a difficult concept to accept but let me give you this analogy.

I give you permission to drive my car.  That does not mean that you can drive my car.  You need a licence; my car has to be taxed and have an MOT (If required); It needs to be insured and roadworthy. Then you can drive my car.

Before you process my personal information despite my consent you need to comply with the DPA and other privacy laws where applicable. The Information Commissioner has suggested that it would be unwise for an organisation to purely rely on consent.

In the next three years we are likely to be faced with a new regulation on Data Protection which will impose upon us more strict regulations with regard to the processing of personal data.

Consent will have to be explicit. It will also be a requirement that should the individual not wish to provide their consent they will not face any detriment. Could this mean?

I apply for a job with you. I have not worked for three years and badly need this job. The application form asks me a lot of questions some of which I find very intrusive and suspect that they may breach the Data Protection Regulations and/or parts of the Human Rights Act 1998.

I don’t necessarily want you checking my credit file because I can’t see that my financial difficulties are any business of yours. The position I am applying for does not involve handling money and I am not aware that there is any recognised research that indicates that a poor credit rating is an integrity issue.

I don’t want to provide you with a Basic Disclosure Check because that drink driving charge I had has no relevance to the position that I have applied for. Etc etc.

If I don’t consent to providing the above and giving you permission to check the information it is likely that you will not give me the job.

Discuss!

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