As Tim observes Sch3 para 9 satisfies the processing condition part of
Principle 1 and as he indicates you still need the fairness part to be
satisfied as per Sch 1 Part 11 Section 3(d). Whether advising the likely
retention period is needed to satisfy this 'fairness' section or Sch3 para9
(c) is obviously subjective.
The OIC Draft Employer COP gives some insight
Section 2.8
Where records of unsuccessful applicants are maintained for management
analysis, for example, to check for possible sex discrimination, they should
not be kept as personal data. Information which enables an individual to be
identified should be deleted from the record.
Section 3.8 Equal Opportunities OIC COP Employers / Employees
Wherever possible keep information used for equal opportunities monitoring
in an anonymised form so that it cannot be linked to particular employees
(Principles 1 & 3).
If OIC Draft COP is followed, then retention periods do not appear to be an
issue given anonymisation is successfully acheived on recruitment data
immediately after recruitment completed. I would personally believe that
retention of unsucessful candidate data after the vacancy filled does leave
some challenging questions. Where retained I would believe from a 'fairness'
view the retention period should be notified to them. Ethnic origin will
only be one item of data an employer may seek in recruitment. Medical and
criminal records questions are commonly asked at recruitment also. Sch3 para
9 will not support processing of these, explicit consent would.
Legal advice given to employers (x ref note by Adrian Tribe) regards data
retention appears on the face of it to conflict with the view in the OIC
COP. This is hardly suprising as the basis under which such advices are
given is prudence to ensure evidence can be produced to defend any charges
of unfair recruitment from an employment tribunal view not allegations of
DPA breaches. Production of the data may make a lawyers task easier
regardless of whether dispute is won or lost. If there is no supporting data
how will a case be decided. DPA however is primarily concerned with an
underlying 'right to privacy' which interestingly was only referenced in the
underlying Directive not in the UK Act itself.
A key question here is under what legal basis would a dispute on data
retention be raised DPA 98 or another Act.
Under DPA a data subject can argue data is held too long or is inadequate
for purpose. A data controller would have to build their defense
accordingly.
You pay your money and make your choice as they say.
David Wyatt
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]]On Behalf Of Wright, Tim M
> Sent: 02 July 2001 10:08
> To: [log in to unmask]
> Subject: Equal opportunities monitoring
>
>
> The discussion to date with regard to retaining unsuccessful job
> applicants'
> personal data in order to avoid racial discrimination suits amongst others
> has concentrated around explicit consent of the data subject
> regarding this
> processing.
>
> I would point out that Schedule 3 - conditions for the processing of
> sensitive personal data - has nine other relevant conditions.
> Only one need
> be satisfied. Data pertaining to racial or ethnic origin is specifically
> allowed by paragraph 9.
>
> Notwithstanding of course, that this only is relevant to the first
> principle, and the rest must be observed too!
>
> Happy Monday, everyone.
>
> Tim
>
> --
> Tim M. Wright
> Director - Technology Audit
> Charles Schwab Europe
> Tel: +44 190 852 7793
> Mobile: +44 7932 669 074
> Fax: +44 190 852 7593
>
>
>
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