News that a National Staff Dismissal Register is about to be launched should be setting off serious alarm bells for employers.
The register is a commercial initiative by the Action Against Business Crime (AABC) Group, and has support from Harrods, Mothercare and Selfridges. It will hold data on individuals dismissed for reasons of dishonesty, including theft and/or damage, and those who resign part way through a disciplinary process or investigation based on such reasons.
AABC states that “investigation of dishonesty is time consuming and costly”, and suggests that employees have the ability to evade internal vetting processes through the reference process. But while many will agree with AABC’s commercial sentiments, the National Dismissal Register also carries huge risks of abuse, discrimination and breaches of data protection.
Defamation
It appears that an employee can be included on the register if they have caused loss to the relevant organisation or a third party, although it is not clear whether this act needs to be dishonest, or whether a mere mistake is enough.
Since individuals can be included on the register without any trial or criminal conviction, there is a risk that it could be abused by employers, and individuals could be ‘blacklisted’. Although an employee has the protection of unfair dismissal claims and could ask for their inclusion on the register to be changed or removed, this takes time, and the damage could already have been done.
This register has the potential to seriously damage an employee’s work opportunities. Currently, if an employer writes a reference that is untrue or unfair, an employee may have a cause of action. Similar arguments may be used in this context, although the real problem is the scope of access organisations will have to this information, which is far more wide-reaching than a reference.
Organisations could be exposing themselves to claims of defamation if an employee feels that their reputation has been damaged by an untrue or unfair inclusion on the register. If an individual believes they have been dismissed (and subsequently included on the register) for a discriminatory reason, and points this out to a prospective employer that decides not to employ them, it is certainly possible that it, along with the original employer, could then face discrimination claims.
Identity fraud
The register also raises genuine concerns over identity fraud as it is run by a commercial organisation and will apparently include the individual’s name, address, national insurance number, previous employers and even photographs – and employees may be oblivious to the fact that they have even been included.
Legalities
Although AABC indicates that it has worked with the Information Commissioner to ensure that the dismissal register complies with the Data Protection Act 1998 (DPA), it is difficult to see how it will be compliant and legal.
Will organisations rely on staff consent provided on a form or in an employment contract? Such consent, particularly if given at the start of the employment relationship when the bargaining power is firmly in the employer’s court, may not be freely given.
Alternatively, is AABC seeking to rely on a significant amendment to the DPA which is expected to come into force in October this year? It seems that this could enable an organisation to argue that since its purpose is to prevent fraud, the processing of personal information and its disclosure to other organisations is necessary to prevent fraud, and does not require consent from employees.
The opportunities to abuse this new scheme are potentially endless. Employers should seriously consider all the consequences.
Key points
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The use of the National Dismissal Register presents big risks for organisations in respect of:
- Data protection compliance
- Discrimination claims
- Defamation actions
- Unfair dismissal claims
- Damage to reputation if any of the above claims are made.
By Kerry Walters and Emma Roe, soclicitors, Clarion Solicitors
