supplementary
guidance

Note: This condition can have quite wide application in the context of employment. Employers’ rights and obligations may be conferred or imposed by statute or common law, which in this context means decisions in relevant legal cases. For example, they will include obligations to;

• check the entitlement of workers to work in the UK
• ensure the health, safety and welfare at work of workers
• select safe and competent workers
• ensure a safe working environment
• not discriminate on the grounds of race, sex, disability, religion or sexual orientation
• ensure the reliability of workers with access to personal data
• protect customer’s property or funds in the employer’s possession
• consider reasonable adjustments to the workplace to accommodate workers with disabilities
• maintain records of statutory sick pay and maternity pay
• supply information on accidents where industrial injuries benefit may be payable
• prevent workers working on a transport system when unfit through drink or drugs
• not continue to employ teachers who do not have the necessary health or physical capacit or employment
• not dismiss workers when it unfair to do so
• ensure continuity of employment under TUPE Regulations

Thus an employer may be able to collect and use sensitive data if this can be shown to be necessary to enable the employer to meet its legal obligations, for example in relation to the safety of its workers, in relation to others to whom it owes a duty of care, or to prevent unlawful discrimination. The collection and use of sensitive data must however be “necessary” for exercising or performing a right or obligation that is conferred or imposed by law. This condition would, for example, be satisfied if:-

• there is evidence that a worker is using the employer’s e-mail system to subject another worker to
  racial harassment, and there is no reasonable alternative to monitoring the worker’s e-mail if the
  employer is to ensure it meets its obligations not to discriminate on the grounds of race.

It would not though be satisfied if:-

• an employer obtains information on the criminal convictions of all applicants for a particular job in
  order to protect its staff or customers but the protection could equally be provided by obtaining this
  information only on the successful applicant prior to confirmation of appointment.
• an employer holds information on the driving convictions of all its workers on safety grounds but
  safety could equally be ensured by holding this information only on those workers who drive the
  employer’s vehicles.
• a bus operator undertakes drug or alcohol testing of all its workers but the safety of its passengersand others could be ensured by confining tests to the drivers of its vehicles and anyone else employedin a safety-critical role.

This condition might also be relied upon to enable an employer to keep more general sickness records on the basis that these are necessary if the employer is to ensure that it does not dismiss workers on the grounds of absence when it would be unfair to do so.

Note: This condition is most likely to apply when there is a medical emergency and the worker or
another person is at risk of serious harm.

Note: This condition is most likely to be relevant in the context of prospective or actual tribunal or court proceedings. It might, for example, be relied on to enable an employer to process sensitive personal information to defend itself against a claim for unfair dismissal or unlawful discrimination.

Note: This condition will be relevant to equal opportunities monitoring related to racial origin, religion and disability. Processing must be “necessary”, emphasising that wherever practicable monitoring should be based on anonymous or aggregated information.

Note: Examples would be where a worker’s trade union membership is known because the worker has appeared on local television as a spokesperson for the trade union or where a worker has chosen to tell colleagues at work about his or her condition or disability without any implication that the information should be kept confidential.

Note: This condition will be mainly relevant to public sector bodies that may have specific legal duties
placed on them in relation to the qualifications, attributes, background, health or probity of their workers.

It will also be relevant when a public sector body concludes that in order to discharge its wider statutory functions it is necessary for it to process sensitive personal information such as criminal convictions relating to workers, or in exceptional cases, their family or close associates. It is therefore most likely to be relevant to the employment of groups such as police or prison officers.

Note: This condition is likely to apply where information is held by a company doctor, nurse or similar
health professional. It will also cover non-medical staff provided they have an equivalent duty of
confidentiality imposed on them, for example through their contract of employment. Whilst this
condition will be applicable to the operation of an occupational health service it will not generally extend to information on workers’ health when it is in the hands of human resources professionals or other managers unless they need to hold it for medical rather than employment purposes.

Note: This condition is most likely to be relevant in the context of research into occupational disease
or illness.

Note: This condition will cover situations where allegations of work-related criminal offences by workers arise, for example, as a result of audit investigations or complaints from customers. In the context of monitoring it will cover situations where monitoring is necessary to detect criminal activity and where seeking the consent of the workers involved would amount to a tip off. ‘Unlawful acts’ include not only criminal matters but also acts that breach other statutory or common law obligations.

Note: This condition will be relevant to the monitoring of calls to confidential counselling, advice or
support lines such as those run by some charities, for example The Samaritans. It will cover the positionof the caller but not of the worker taking the call.

Note: Employers seeking to rely on this condition must bear in mind that:

• the consent must be explicit. This means the worker must have been told clearly what personal data are involved and have been properly informed of the use that will be made of them. The worker must have given a positive indication of agreement e.g. a signature:
• the consent must be freely given. This means the worker must have a real choice whether or not to consent and there must be no penalty imposed for refusing to give consent.

By “no penalty” we mean that consent will not be valid if the employer imposes a punishment on the
worker for refusing consent. For example consent to the employer obtaining a doctor’s report on a sick worker will not be valid if the worker faces dismissal simply for refusing to give consent. This does not necessarily mean that declining consent has to be a risk-free option for the worker. It is possible to envisage a situation where, with the benefit of the information in the doctor’s report the
employer would have been persuaded to continue the worker’s employment, but without it the employer, acting on the limited information available, decides that dismissal on the grounds of sickness absence is appropriate. Consent obtained in these circumstances will still be valid. The need for consent to be freely given means that the extent to which consent can be relied upon in the context of employment is limited. In relation to the recruitment and selection of workers this is less
of a constraint. Individuals in the open job market will usually have a free choice whether or not to apply for a particular job. If consent to some processing of sensitive data is a condition of an application being considered this does not prevent the consent being freely given. It must of course be clear to the applicant exactly what he or she is consenting to. As recruitment proceeds the opportunities to obtain valid consent are likely to be reduced. If, for example, the consequences of not consenting is the automatic withdrawal of a job offer the consent is unlikely to be freely given.