Act puts curbs on screen tests

Employers are taking advantage of sophisticated tools available to recruit and assess employees. The most popular are CV scanning...

Employers are taking advantage of sophisticated tools available to recruit and assess employees. The most popular are CV scanning software and psychometric testing. These tools are automatic and the results are processed by computer.

Companies which use these in isolation should be aware they may fall foul of UK data protection law in some circumstances. The Data Protection Act and the draft employment code covers all aspects of data processing in the recruitment and evaluation procedure. It also focuses on decisions made based on personal data. These methods may also put employers at risk from discrimination claims.

People can write demanding that the company makes no decisions based solely on automatic processing if the decision involves an evaluation. This covers performance at work, reliability and conduct.

Even where no written notice is received, the Act places obligations on the employer. However, it does set out certain areas where the employer will be exempt from obligations even if a written notice is received.

The areas where employers can base decisions on automated tools are:

  • For the purpose of considering whether to enter into a contract with the individual, eg for screening CVs

  • With a view to entering into such a contract, eg for assessing ability

  • In the course of performing such a contract, eg an appraisal

    Where the effect of the decision is to reject the request of the employee (eg the employee is not offered a job), steps must be taken to safeguard the rights of the employee or potential employee by allowing them to make representation.

    In an employer/employee context, automated decisions for recruitment or assessment is likely to qualify as an exempt decision. However, the employer must be aware the unsuccessful person should have a right of appeal or to make representations. This means notifying job applicants an automated process will or has been used and allowing them to state why they should be considered separately. This would apply in all screening situations.

    Employers should be aware that people may request an explanation of the reasoning in automated decisions.

    Organisations which fail to comply with this legislation may be subject to legal action by employees or prospective employees or by the data protection commissioner. People who suffer damage are entitled to seek compensation if the employer is unable to prove it has complied.

    Employers should also ensure any assessments they use complies with discrimination legislation.

    Susan Fanning works at solicitor's firm DLA, tel: 020-7796 6697 or e-mail susan.fanning@dla.com

    Action to be taken by employers

    Where using automated techniques employers must:

  • Allow for manual evaluation when people give notice that they don't want decisions based solely on automated tools

  • Ensure employees or applicants are informed of decisions based on automatic processing where decisions are exempt and allow them to make representation

  • Give an explanation of the evaluation processes if requested

  • Ensure software does not put you at risk of indirect discrimination.

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