Code of practice needs to be easily digestible

The information commissioner is due to step down from her post in November.
Let us hope Elizabeth France does not decide to write her memoirs – it is
unlikely to be a punchy beach read.

The commission finally released its code of practice on recruitment and
retention last week – a full six months after it was due. The code takes 56
pages and 13,500 words to clarify employers’ responsibilities under the Data
Protection Act 1998.

Employers and their representative bodies are understandably up in arms
about the length of the document and its lack of clarity. It is an important
piece of guidance and it needs to be easily digestible.

It shows, for example, that job candidates have a legal right to see the
notes taken by an employer during their interview. Employers need to know that
any notes taken during the interview process could be used against them should
that person bring an employment tribunal – it would be wise to steer clear of
scribbles about gender, ethnic origin, sexual orientation, attractiveness, etc.

And let us not forget that the commission can also bring criminal
prosecutions against employers for certain non-compliance, such as
organisations that are deemed to have tried to obtain information about
candidates by deception, i.e. didn’t ask their permission.

It shows why the commission should have gone to greater lengths to simplify
the code, stressing the difference between what is best practice guidance and
what is legally binding. HR professionals have been calling on the commission
to do this since its hastily arranged conference last June, which was supposed
to iron out these problems.

The commission is releasing three further codes on data protection this
year, including ones on monitoring and staff records. It must rethink the best
way to present this information otherwise the only readers will be the lawyers.

By Mike Broad

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