Data protection and discrimination: From recruitment to the workplace

There are certain rules on data protection that each business must consider in order to ensure that they are compliant with UK law. However, the collection of data occurs long before a person is hired. How do companies gather such information? Is it legal? What can you do to ensure this data is not used inappropriately?

Whether it’s in the recruitment process or in the workplace, this post will detail what information potential employers or current employers may have on file and what your rights are to ensure that this data is protected.

What are the rules employers should follow?

The Data Protection Act of 2018 is legislation that protects the use of individuals’ personal information by the government, organisations and businesses. There are strict rules called the ‘data protection principles’ that must be complied with to ensure that those who have personal data act responsibly. Some of these principles are that data must:

  • be accurate and up-to-date
  • be used for specific lawful purposes, fairly and transparently
  • not be kept for an indefinite period of time
  • be used in a limited way
  • be kept secure

The worry is that potential employers and your current employers may have a great amount of your data that can be used for other purposes. But be sure to recognise, at each stage in the process, whether the employer is complying with the proper data privacy rules. From the outset, they should do the following:

  • Confirm with you that your personal data can be processed.
  • Show a copy of that data to you.
  • Specify how that data is collected, what it will be used for, and when it will be disposed.

Of course, employers do need to know some of your personal information, by virtue of the recruitment process, or having you as an employee. Employers are allowed to keep the following data about their employees or their recruits:

  • name
  • address
  • date of birth
  • sex
  • education and qualifications
  • work experience
  • national insurance number
  • tax code
  • emergency contact details
  • employment history
  • disciplinary action, training, accidents

However, data protection regulations now require employers to get express consent from the employee to keep certain types of sensitive data. They are the following:

  • political affiliation
  • genetics
  • biometric data
  • health
  • sexual orientation
  • race
  • ethnic background
  • religious beliefs
  • trade union membership

This is good news for those who are applying to new positions and are taking part in the interview process. Potential employers are not allowed to ask you questions related to whether you are planning to have children, or if you are married or in a civil partnership, have undergone gender reassignment, have a disability, and so forth.

Beware of certain questions that employers may try to slip in without you noticing. Such questions might include the following:

  • What is your native tongue?
  • Aren’t you too young to have a position on this level?
  • How old are your children?
  • How did you acquire your disability?
  • What does your partner do for a living?

These innocent questions may sound non-discriminatory, given how the tone that they are asked, but and requires some degree of tact and diplomacy to answer. Make sure that you are prepared to answer such behavioral questions in the right manner. The interviewer may or may not intend to be discriminatory here, but it is within your legal right to refuse to answer such a question and make it known to the interviewer.

What are your rights as an employee?

Although employers are told to follow these rules strictly, you should also be on the lookout for potential red flags of discrimination and non-compliance with data privacy laws. Although not a definitive list, here are some of the rights that you have under the data protection law:

  • the right to rectify data that is inaccurate or incomplete
  • the right to access any and all data that they have on you
  • the right to delete data that they hold on you
  • the right to be informed and to ensure that there is transparency in the process

If you are unsure about what information seems to be more sensitive than others, then you should ask yourself the following: Is it necessary for my employer to have this data? A bank account number, for instance, is certainly something that an employer needs to have in order for the employee to be paid. Likewise, you should inform your employer that you are sick in order for them to record and process your sick days so that they facilitate the payment of statutory sick pay.

However, if an employer asks what illness you have that keeps you out of the office so often, you are under no obligation to give that sort of information out. Or, if you have given that information out in the past, you have the right for that information to be deleted from your file as well.

What to do when discriminated against

Measures or policies that affect or separates employees is direct discrimination. For example, they offer benefits for married employees, but not for those who are in a civil partnership or single. If you have a company that pays men and women differently, despite doing work of equal value, it is discrimination. If there is some action taken against you in a negative way which relates to any sensitive information above, then you also have a discriminatory act. Here are your ways forward if you are discriminated against.

If an employee does feel that they were discriminated against, then they are in their legal rights to file a grievance with a Grievance Letter and take their case to an employment tribunal. Employers are responsible for any discrimination carried out by their employees as well. Let’s say that a colleague discriminates against you. You’ve told your manager and others, yet they do not take the appropriate action. This would mean that the employer did not do everything they reasonably could in order to prevent or stop the discrimination.

The workplace can be a highly stressful place, but that does not mean that you should be unlawfully acted against based on your personal data or sensitive information. Ask a lawyer for advice regarding your situation and for further information read Data protection and employees.