Employees - recruitment, records and monitoring

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1 Emplyees - recruitment, recrds and mnitring This guidance has been prduced t help rganisatins cmply with the Data Prtectin Act (DPA) when recruiting and emplying wrkers. It is relevant t public sectr emplyers, cmmercial enterprises and t rganisatins, such as charities, that use vlunteers r unpaid wrkers. The DPA applies t infrmatin abut living, identifiable peple. This includes emplyees, vlunteers and jb applicants. It applies t cmputerised infrmatin that is abut individuals, such as s, CCTV, mnitring equipment, psychmetric tests, wrd-prcessed dcuments and spreadsheets etc., and manual recrds that are held in structured filing systems. The DPA regulates the way in which infrmatin abut individuals is cllected, handled, used and destryed. The Data Prtectin Principles set ut these rules and further infrmatin n the principles is available n ur website and in ur Brief Guide. The DPA als gives individuals rights, including access t their infrmatin, and cmpensatin if things g wrng. THE RECRUITMENT AND SELECTION PROCESS The DPA des nt prevent yu frm recruiting emplyees effectively, but strikes a balance between an emplyer s need fr infrmatin abut the persn, and that persn s right t respect fr their private life. It applies t infrmatin yu cllect r use abut peple as part f yur recruitment r selectin prcess, fr example, CVs, cmpleted applicatin frms r ther emplyment checks yu undertake, and requires penness n yur part t ensure that applicants are aware f what infrmatin abut them is being gathered, and what it will be used fr. Gathering infrmatin abut an applicant cvertly, fr example, trawling scial media, t assist in yur selectin prcess is unlikely t be justified. Getting it right fr jb applicants Make sure yur advert identifies the rganisatin prperly peple need t knw wh they are applying t. A PO Bx address n its wn will nt identify the rganisatin, neither will an address such as Design yur applicatin frm t cllect enugh infrmatin fr the purpse f identifying suitable candidates, but d nt cllect mre infrmatin than yu need d nt ask fr infrmatin that is irrelevant just because it may be useful in the future. The less infrmatin yu have, the less damage can be caused if the infrmatin is lst. D nt cllect infrmatin frm all applicants that will nly be required frm the persn recruited fr example bank accunt details, NI number etc. D nt ask fr details f criminal cnvictins unless this is justified by the type f jb yu are recruiting fr. D nt ask fr details f spent cnvictins unless the pst is cvered by the ne f the Exceptin Orders t the Rehabilitatin f Offenders Act PO Bx 69, Duglas, Isle f Man, IM99 1EQ T: W: infrights.im E: 1

2 If yu are ging t verify the infrmatin a persn prvides, i.e. pre-emplyment screening, tell them that this will ccur, and hw it will be dne. If yu intend t verify criminal recrd infrmatin i.e. d a vetting check yu can nly d this by getting a disclsure frm the Disclsure and Barring Service, Disclsure Sctland, Access Nrthern Ireland, r equivalent rganisatin. There are strict guidelines as t when any disclsure ther than a basic disclsure r standard disclsure can be made. Depending n the level f disclsure required, the individual themselves may be required t make the applicatin. Unless disclsure is required by law, the individual must cnsent t a disclsure being sught and made, and such disclsures shuld nly be sught fr the persn wh has been ffered the pst. Make sure yu are entitled t seek and receive this infrmatin, strictly fllw any prcedures r cdes f practice issued by these bdies nly keep a recrd that a satisfactry/unsatisfactry check was made d nt hld n t the detailed infrmatin, and d nt disclse the details t any persn ther than the individual themselves. Only keep infrmatin btained during the recruitment prcess fr as lng as there is a clear business need fr it. Please see ur guidance n the fifth data prtectin principle fr mre infrmatin n the retentin f persnal data. In circumstances where the successful applicant requires a wrk permit, certain infrmatin will need t be retained until the wrk permit has been issued. The Wrk Permit Cmmittee may, if necessary, ask yu t supply, amngst ther things, details f the number f applicants and cpies f the CV s f the unsuccessful shrt-listed candidates in redacted frm (i.e. with identifying infrmatin such as name, address, etc. remved). This infrmatin can be disclsed t the Wrk Permit Cmmittee withut breaching the DPA. Further guidance n wrk permits is available n the Department f Ecnmic Develpment s website. Keep the infrmatin physically secure cnsider lcked filing cabinets fr manual infrmatin and passwrd prtectin r encryptin fr cmputerised infrmatin. If the use f prtable media is necessary, these shuld be encrypted. Access t this infrmatin shuld als be limited t a few key persnnel. Please see ur guidance n the seventh data prtectin principle fr mre infrmatin abut prtecting persnal data. Use the infrmatin yu cllect nly fr selectin and recruitment. If yu are ging t use details, such as addresses fr direct marketing r sending details f future vacancies, then yu must explain this t the persn, seeking cnsent t d s. Make sure that thse invlved in recruitment and selectin are aware that the data prtectin rules apply and handle persnal infrmatin with respect. Treat ther peple s persnal infrmatin in exactly the same way yu wuld expect yur persnal infrmatin t be treated. PO Bx 69, Duglas, Isle f Man, IM99 1EQ T: W: infrights.im E: 2

3 EMPLOYEE RECORDS The DPA des nt prevent yu frm cllecting, maintaining and using emplyment recrds; hwever, a balance must be struck between the emplyer s need t keep recrds and emplyees right t respect fr their private life. Openness is the key t cmplying with the DPA and wrkers shuld be aware f what infrmatin is being cllected, and what is will be used fr. Gathering infrmatin cvertly is unlikely t be justified. Getting it right fr emplyees Yu d nt need t get the cnsent f emplyees t keep recrds abut them, but make sure they knw hw yu will use the recrds and whether, and t whm, yu may disclse the infrmatin they cntain; Ensure that access t emplyee recrds is limited t key persnnel and that they understand that the data prtectin rules apply; Check what recrds are being kept abut emplyees Are they accurate and up t date? Is there irrelevant r excessive infrmatin held? Is the infrmatin still needed fr a legitimate business need r legal bligatin? Let emplyees check their recrds peridically this will allw mistakes t be identified and rectified and keep the infrmatin up t date; Be wary when yu are asked t disclse infrmatin in an emplyment recrd make sure yu knw wh yu are disclsing t and that they have a legitimate right t ask fr that infrmatin; Yu will be legally required t prvide certain infrmatin under ther relevant legislatin, fr example t the Incme Tax Divisin. The DPA des nt prevent yu frm ding this, but yu shuld be careful t nly supply the relevant infrmatin; D nt prvide a cnfidential reference r similar infrmatin unless yu are sure that the emplyee wuld agree t this if in dubt ask them. If yu prvide a reference this shuld be fair and accurate and shuld nt cntain any negligent misstatement abut the persn; Keep emplyee recrds secure; Particular recrds: Sickness recrds are details f sickness held separately frm a simple recrd f absence and accessible nly by key persnnel? Pensin r insurance scheme this infrmatin shuld nly be used fr this purpse and emplyees shuld be aware f what infrmatin is passed between the emplyer and the pensin scheme prvider r insurer. PO Bx 69, Duglas, Isle f Man, IM99 1EQ T: W: infrights.im E: 3

4 Equal pprtunities mnitring if yu cllect sensitive infrmatin abut disability, race r sexuality, this shuld be annymised as far as pssible, s that it des nt identify particular emplyees. Right f access The DPA prvides individuals with a legal right f access t their persnal data. This legal right is a backstp. If an emplyer is pen with their emplyees and permits staff t check their persnnel file fr accuracy and prvide cpies f dcuments n request, there shuld be n need fr emplyees t exercise their legal right f access. If an emplyee finds it necessary t exercise their right f access, there is cmprehensive guidance available n the website t assist yu in cmplying with yur bligatins under the DPA. PO Bx 69, Duglas, Isle f Man, IM99 1EQ T: W: infrights.im E: 4

5 MONITORING EMPLOYEES If yu mnitr yur emplyees by cllecting r using infrmatin abut them, the DPA will apply. This can happen fr example when yu check telephne lgs t detect excessive private use, mnitr s r internet usage, install swipe card r bimetric access systems, use vehicle tracking systems r lne wrker mnitring systems. A custmer fr a business s services r prducts, fr example cntract cleaning services, may try t impse a cnditin requiring the supplier t mnitr its wrkers, fr example requiring that wrkers are vetted. If this mnitring invlves prcessing persnal data, it will nt be justified simply because it is a cnditin f business. As the emplyer, and data cntrller, it is yur respnsibility t ensure that yu cmply with the DPA when prcessing the persnal data f yur emplyees; n bligatin t prcess the persnal data f yur emplyees can be impsed n yu by cntract. Emplyees shuld be made aware f any mnitring yu undertake and the reasns fr it, unless in the exceptinal, limited circumstances where cvert mnitring is necessary. Cvert mnitring can rarely be justified, unless fr example, there are real grunds fr believing that criminal activity r equivalent malpractice is ccurring and that telling peple abut the mnitring wuld make it difficult t prevent r detect such wrngding. Cvert mnitring must be authrised at the highest level and shuld nly be undertaken as part f a specific investigatin and stpped nce the investigatin has been cmpleted. D nt use cvert mnitring in areas such as tilets r private ffices, unless yu have real grunds t suspect serius crime and intend t invlve the plice. The DPA des nt generally prevent rutine mnitring, but des require yu t be pen with yur emplyees abut these activities. Sme f these mnitring activities are t prtect yur emplyees, r t ensure that health and safety rules are being adhered t. Mnitring must be prprtinate t the intended aim, nt adversely impact the privacy f the individuals and be justified by its benefit t the emplyer. Cnsideratins: Autmated mnitring systems are usually less intrusive Be wary when pening s, particularly if they clearly shw that they are private r cnfidential; Target vide r audi mnitring apprpriately, aviding areas such tilets, changing rms etc. If it is necessary t mnitr accunts r vic f emplyees during their absence, make sure they are aware f this. It wuld be generally unfair t tell emplyees that mnitring is being undertaken fr ne purpse and subsequently use the infrmatin btained fr anther purpse. Only use the infrmatin btained thrugh mnitring fr the purpse fr which yu carried ut the mnitring, unless the mnitring leads t the discvery f activity that n emplyer culd reasnably be expected t ignre, fr example breaches f health and safety rules that put ther wrkers at risk. PO Bx 69, Duglas, Isle f Man, IM99 1EQ T: W: infrights.im E: 5

6 It shuld nt be used in disciplinary matters that are unrelated t the purpse fr mnitring, fr example, infrmatin btaining thrugh mnitring emplyee fr health and safety purpses shuld nt be used fr emplyee time-keeping disciplinary matters. Keep the infrmatin btained thrugh mnitring fr n lnger than necessary and ensure that it is held securely with access limited t key persnnel. If it is utilised in disciplinary matters, then it will nt be required t be kept fllwing the cnclusin f that matter. Getting it right fr emplyees Make sure yur emplyees are aware, and regularly reminded, that they are being mnitred. This may, fr example, be thrugh: Emplyee handbk Warnings n cmputers at lg in Signage in vehicles Ntices n ntice-bards reminders Staff meetings Make sure yur emplyees knw why they are being mnitred If this is t enfrce yur rules and standards, make sure emplyees knw what these rules and standards are, and that yu stick t them. Fr example if yur rules impse a cmplete ban n internet use, being seen t turn a blind eye t a limited amunt f activity may mean that yu cannt rely n the cmplete ban as justificatin fr mnitring. Further guidance n emplyers bligatins The Department f Ecnmic Develpment s website cntains guidance n emplyment rights. PO Bx 69, Duglas, Isle f Man, IM99 1EQ T: W: infrights.im E: 6

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