GDPR and Recruitment

Siobhan Bishop: Hello and welcome to this podcast where we are discussing recruitment and the GDPR.

I am Siobhan Bishop a Principal Associate in the Employment and Equalities team at Gowling WLG and I am joined by Alice Loughney, an Associate in the team.

In this podcast we are going to be discussing some of the tricky issues relating to recruitment arising out of the introduction of the new GDPR rules which came into force on 25 May 2018. In particular we are going to be looking at the issues surrounding pre-employment medicals, criminal convictions and equal opportunities monitoring.

So Alice, firstly let's look at the very common issue which is how to deal with pre-employment health information. Under the GDPR can employers continue to collect information about job applicants' health?

Alice Loughney: Yes they can do provided that that processing meets one of the six lawful bases for processing under the GDPR. The most likely of these to apply to the situation where you want to collect information about job applicants' health is either that you've got a legal obligation to do so, for example, you may have health and safety requirements or that processing is in your legitimate interests as an employer. If you're going to rely on the legitimate interests ground for processing you need to make sure that your interests in collecting the data aren't outweighed by the intrusion on the individual job applicant's privacy.

Because health data is special category data under the GDPR you also need to meet an extra condition related to this type of data. The most likely to apply here will be either that processing is necessary for compliance with an employment law obligation, so that might be the requirement to make reasonable adjustments for disabled employees. It might be that processing is necessary for equal opportunities monitoring purposes. Or it could be necessary for purposes of occupational health. This only applies in the context of data that is processed under the responsibility of a professional who is subject to an obligation of professional secrecy so it's helpful if you're getting occupational health reports written by a doctor for example but it won't assist you in the context of information provided by the applicant themselves for example, by completing a questionnaire or an application form which asks for information about their health.

Siobhan: And what else do you need to consider about the Equality Act?

Alice: So there are a couple of things to remember. One is obviously the need to make reasonable adjustments and avoid discrimination in relation to job applicants with disabilities but there is also a specific rule under the Equality Act about when you can and can't ask applicants about health conditions during the recruitment process.

So the general rule is that it is unlawful to ask such questions before you've made a job offer. They would have to come after the point you've made a conditional offer. There are very narrow exceptions to this rule so other than asking about information you need in order to make reasonable adjustments. The main exception is asking for information about whether an applicant will be able to perform an intrinsic part of the job, such as whether they'll be able to carry out manual handling duties if that is a key part of the role. Of course, even if that is the case you would still need to make reasonable adjustments if they are disabled.

Siobhan: So another area that employers are often concerned about is when they can collect information about a job applicants' criminal convictions. In particular, can an employer justify processing criminal conviction data under the GDPR where there is no actual legal obligation to carry out a criminal record check?

Alice: This is a really tricky issue and is one where employers are having to reconsider some of their basic recruitment practices because in some industries it's still really common for employers to just have a blanket rule that they'll ask all job applicants for any role whether or not they've got any unspent criminal convictions, and sometimes they also require applicants to undergo Disclosure and Barring Service (DBS) checks.

So just to give a bit of background as to how the legislation works in terms of asking about spent or unspent criminal convictions, there's specific time periods in relation to each offence as to when a conviction, caution, etc. will be considered spent. Employers can't take into account spent convictions unless a specific exception applies, for example in relation to jobs which involve working with children or vulnerable adults.

In terms of unspent criminal convictions, in theory you can get information about these regardless of the role being applied for but under the GDPR this is where it gets quite tricky. So you still need to have a lawful basis for processing the data, and where there is no legal obligation again you will need to carry out a balancing exercise to see whether your legitimate interests are enough to outweigh the intrusion on an individual's privacy, and you also need to meet an extra condition given that this data is so sensitive. In terms of the most likely extra condition to apply that's probably processing on the grounds of substantial public interests, and this was one of the latest changes made to the Data Protection Act which came into force just before the GDPR came out so it now includes processing that's necessary for compliance with a regulatory obligation which includes obligations related to best practice as well as those set out in law. So this could potentially be really helpful for employers who don't strictly have a legal obligation to process criminal convictions data in relation to applicants but nevertheless, across their industry it is best practice to do so. For example, if employees will be handling lots of sensitive financial data. This is an area where we're still waiting on Information Commissioner's Office (ICO) guidance and I think that's partly because the change came in so late in the day, so hopefully they'll be able to give us some more guidance to help employers who do tend to carry out criminal records checks. But in any case I think the practice of carrying out blanket checks regardless of the role applied for in the industry in which they are working is a thing of the past.

Siobhan: OK, thank you.

Another important area is that of equal opportunities monitoring. So can employers continue to monitor the equality of opportunities under the GDPR?

Alice: Yes they can do, again provided that they've got a lawful basis for doing so and that they meet one of the extra conditions in relation to special category sensitive personal data. In most cases this should be fairly straightforward for employers provided that they're taking steps to minimise the intrusion on an individual's privacy. So probably things they'd be doing anyway in terms of anonymising equal opportunities questionnaires, separating them out from the rest of the application documents. But the trickiest issue we've come across in this area is more in terms of the data mapping exercise and lots of HR teams have been quite surprised about what's happening with this equal opportunities data that's being collected across the organisation. So in lots of cases employers are routinely asking for the information but never actually do anything with it, or in other cases it is being used in slightly different ways to what the HR team working centrally would expect.

So I think it's a helpful reminder of the need to come up with a decent data map when you are working out exactly what recruitment information is collected so that this can then be tracked through to your privacy notices and other documents.

Siobhan: OK, so we've discussed, as you said, each organisation needs to understand what information they do collect and why and what the basis that they can lawfully process that is, and particularly the additional conditions for special category data, and how some of those issues apply particularly to recruitment. But you've just touched on privacy notices and also the issue of policies, what would be the most important issues relating to those in recruitment?

Alice: A couple of things. So I think it's really important to have a separate recruitment privacy notice, and the basis for processing recruitment data won't be the same as the basis for processing data in relation to people who are already working at your organisation so you need to set those out really in separate documents. You should make sure that the recruitment privacy notice is provided at the point the applicant is being asked to give their application information so, in the case of jobs that are applied for online you should really have the privacy notice online on your website.

The other key document besides privacy notices is a really robust data retention policy. So one of the key principles in the GDPR is that you shouldn't hang onto data any longer than you actually need it. That's obviously quite difficult to police in practice so one of the best ways of setting yourself up to do that is by having a really robust policy with clear retention times in relation to each type of data and making sure that managers making recruitment decisions in processing application documents across the organisation know exactly how long they are supposed to hang onto things for and don't just keep hold of application documents just in case.

Siobhan: Great. Thank you Alice for that summary and also the reminder about policies and of course making sure that they are supplemented by training so that they are understood but also reviewed and monitored.

And thank you for joining us. If you have any questions on recruitment or any of the employment GDPR issues we have discussed today or other questions, please feel free to contact Alice or any member of the team.

Thank you.