Essential Guide to Legally Collecting Employee Biometric Data in the UK

Understanding Biometric Data and Its Significance

In the modern workplace, the use of biometric data has become increasingly common, from facial recognition systems to fingerprint scanners. However, this technology raises significant concerns about data protection and privacy. To navigate these complex issues, employers must understand the legal framework surrounding the collection and use of biometric data in the UK.

Biometric data, such as facial recognition, fingerprints, and genetic information, falls under the category of “special category” personal data. This classification is due to its sensitive nature and the potential risks associated with its misuse. Under UK data protection law, which is largely aligned with the General Data Protection Regulation (GDPR), there are stringent rules governing the processing of such data.

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Legal Basis for Processing Biometric Data

To legally collect and process biometric data from employees, employers must establish a valid lawful basis. Here are the key lawful bases as outlined by GDPR and UK data protection law:

Explicit Consent: This is the most common basis for processing biometric data. Employers must obtain explicit consent from employees, which means the consent must be clear, specific, and freely given. For example, if an employer wants to use facial recognition for security purposes, they must get explicit consent from each employee before implementing the system.
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Contractual Necessity: Biometric data can be processed if it is necessary for entering into or performing a contract with the employee. However, this basis is less common for biometric data as it is typically not essential for the employment contract itself.
Legal Obligation: Employers may process biometric data if it is required by law. For instance, certain industries may have legal requirements for biometric identification for security or regulatory compliance.
Public Interest: Processing can be justified if it is necessary for the performance of a task carried out in the public interest or in the exercise of official authority.
Legitimate Interests: This basis can be used, but it must not override the rights and freedoms of the data subjects. Employers must conduct a balancing test to ensure their legitimate interests do not harm the employees’ rights.

Special Considerations for Biometric Data

Given the sensitive nature of biometric data, there are additional considerations employers must take into account:

Restrictive Provisions

Decisions based solely on automated processing of biometric data, such as facial recognition, are subject to more restrictive provisions. These decisions are only permitted with explicit consent, or if necessary for entering into or performing a contract, or if required or authorised by law and there is a substantial public interest.

Ethical and Legal Implications

The ethical and legal implications of collecting and using biometric data are being closely examined by experts. For instance, Professor Nita Farahany, involved in a joint project between the American Law Institute and the European Law Institute, is working to develop principles for the governance of biometrics. This project aims to guide lawmakers in regulating biometric technologies, considering their impact on society and individual rights.

Practical Steps for Employers

To ensure compliance with UK data protection law, employers should follow these practical steps:

Determine the Lawful Basis

Identify the lawful basis for processing biometric data. If explicit consent is required, ensure it is obtained in a clear and transparent manner.
Document the lawful basis and the processing activities.

Inform Employees

Provide employees with detailed information about the collection and use of their biometric data. This includes the purposes of processing, the legal basis, and their rights.
Update privacy notices to reflect the changes, such as informing employees of their right to complain to the controller.

Implement Safeguards

Put in place appropriate technical and organizational measures to protect biometric data. This includes encryption, access controls, and secure storage.
Conduct a data protection impact assessment (DPIA) to evaluate the risks associated with the processing of biometric data.

Monitor and Review

Regularly monitor the use of biometric data and review the policies and procedures to ensure they remain compliant with the law.
Ensure that any changes to the processing activities are communicated to employees and that their consent is updated if necessary.

Example: Natural England’s Approach

Natural England, a UK public body, provides a comprehensive example of how to handle personal and biometric data. Here is how they approach it:

Collection and Use: Natural England collects various types of personal data, including biometric data, for employment purposes such as managing contracts, paying salaries, and ensuring health and safety. They use this data only when the law allows, such as for the performance of a contract or in the public interest.
Legal Basis: They ensure that the legal basis for processing is clearly defined and documented. For example, they use the basis of contractual necessity for processing employment-related data.
Employee Information: Employees are informed about the collection and use of their data through detailed privacy notices. These notices include information on how the data is used, the legal basis, and the employees’ rights.

Table: Key Considerations for Processing Biometric Data

Aspect	Description	Legal Requirement
Lawful Basis	Explicit consent, contractual necessity, legal obligation, public interest, legitimate interests	Must be established and documented
Special Category Data	Biometric data is considered special category data	Requires explicit consent or other specific conditions
Restrictive Provisions	Automated decisions based on biometric data have restrictive provisions	Explicit consent or substantial public interest required
Privacy Notices	Inform employees about the collection and use of biometric data	Must be clear, transparent, and updated as necessary
Safeguards	Technical and organizational measures to protect biometric data	Must be implemented to ensure data security
Monitoring and Review	Regular monitoring and review of policies and procedures	Ensure ongoing compliance with the law

Quotes and Insights

“The DUAB will, if enacted in its current form, also set out a new UK legal framework for initiatives on digital ID, smart data, and the digitising of key public registers and assets,” said Anna Flanagan of Pinsent Masons. This highlights the evolving legal landscape and the need for businesses to stay informed.
“The project may also consider whether the categories of biometric data, biometric technologies, or biometric inferences are in any way unique, whether they present unique risks, or whether they overlap with existing categories,” said Professor Nita Farahany. This underscores the ongoing efforts to clarify and regulate biometric data use.

Collecting and processing biometric data from employees in the UK is a complex task that requires careful adherence to data protection laws. Employers must ensure they have a valid lawful basis, inform employees transparently, implement robust safeguards, and continuously monitor and review their practices. By following these guidelines and staying updated with the evolving legal framework, businesses can protect both their interests and the privacy rights of their employees.

Additional Tips for Employers

Consult Legal Experts: Given the complexity of data protection law, it is advisable to consult with legal experts to ensure compliance.
Employee Engagement: Engage with employees to understand their concerns and ensure they are comfortable with the use of biometric data.
Training and Awareness: Provide training to HR and other relevant staff on the handling and protection of biometric data.
Regular Audits: Conduct regular audits to ensure that the processing of biometric data aligns with the documented policies and procedures.

By taking these steps, employers can not only comply with the law but also build trust with their employees, ensuring a secure and respectful use of biometric data in the workplace.