EU to curb bosses’ access to staff data

By Peter Chapman

Date: 18/03/04

THE European Commission is planning radical new rules to prevent Europe's bosses from snooping on their employees.

The draft directive, drawn-up by staff of ex-employment commissioner Anna Diamantopoulou, will force employers to abide by a detailed list of rules to ensure they only invade the privacy of their staff in strictly limited circumstances.

Details of the law, seen by this newspaper, include a virtual ban on processing of 'sensitive' and 'special categories' of data, such as racial or ethnic origin, religious beliefs, political opinions, sexuality and criminal convictions.

Data such as a worker's criminal convictions could only be processed when this is "justified, necessary and appropriate to a specific job". Using information about an employee's driving offences could be allowed for a haulage company, for instance. However, such processing would have to be approved, in advance, by national data-protection watchdogs.

Strict controls on the way bosses can use information about workers' health, including genetic data, are also planned.

For example, staff health records could only be used in extremely limited circumstances to ascertain fitness for a specific job, for health and safety requirements, or to determine workers' employment rights or benefits.

Workers would, at all times, have the right to see key data, such as employment evaluations, and also to be notified when this data is sent to any third parties.

Likewise, data processing on drug and alcohol tests would be allowed in cases where safety is paramount. Random testing would only be allowed in cases where there was "reasonable suspicion" that drug or alcohol abuse was rife among workers carrying out such jobs.

Bosses would not be able to reject a job applicant on the basis of criminal records, health, drug, alcohol or genetic tests. Using such information would only be tolerated "after he or she had been selected for the position based on other criteria", under the plans.

Routine monitoring of employees would be banned in most circumstances, and 'secret monitoring' of staff could only take place if an employer had a reasonable suspicion that a worker was involved in criminal activity.

Bosses would have limited scope for checking workers' email or internet usage. Companies such as investment banks routinely check emails to help guard against market abuse allegations. Some firms summarily dismiss workers found surfing porn websites in working time.

But employers would be forced to consult staff representatives and provide clear information on company policy.

Finally, the job of interpreting how the law should be applied would be handed to the so-called Article 29 group of national data officials.

Mike Pullen, a data privacy expert with international law firm DLA, commented: "This means, in theory, that firms will have to take protection of employment data more seriously." He said existing EU data privacy rules already applied to workers but the new law would set down more clearly what companies can and cannot do.

"The problem is that the existing rules are implemented so differently it is difficult for companies to get a uniform compliance policy. We are supposed to have a single market for data transfers but it is virtually impossible to transfer a worker's data within a company from Germany to, say, France, without getting prior permission from the employee," added Pullen.

The proposals were scheduled for launch earlier this year, but were put on ice when Diamantopoulou left to fight the Greek elections. Aides to her replacement Stavros Dimas acknowledged the plans, but said he needed to get to grips with his new portfolio before signing off on such a controversial proposal.

A draft European Union directive will require employers to follow strict rules to ensure they only invade the privacy of their staff in strictly limited circumstances, with a virtual ban on processing sensitive data such as racial or ethnic origin, religious beliefs, political opinions, sexuality and criminal convictions.

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