Right to work checks can require employers to obtain various pieces of personal data, such as the nationality and immigration status of applicants. While these details may be considered to be sensitive, are they considered to be ‘special categories of personal data’ and thus subject to higher protection under the various UK data protection regulations?

‘Special category personal data’ is personal data which reveals details such as racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, sexual orientation, genetic or health data.

Regarding right to work checks, an applicant’s immigration status alone would likely not be considered to fit within this definition of special category personal data. However, it is likely that employers that conduct right to work checks will obtain data which would be considered special category personal data, such as details regarding racial or ethnic origin.

Employers should proceed with caution if they believe they are collecting and processing special category personal data as it is prohibited for anyone to process special category data unless an exemption applies, for example where the individual has given their explicit consent. It should be noted that, even where an exemption applies (and thus processing of special category data is allowed), the processing is subject to higher protection.

Ultimately, the type of data being processed must be considered on a case by case basis and will largely depend upon the questions asked by any application form(s). The Information Commissioner’s Office website provides helpful guidance for organisations (as well as the public) on data protection issues, including thorough guidance for organisations on the collection and processing of special category personal data.

This article was provided by Madison Bowyer, an Associate in the Employment Law Group at Arthur Cox NI. 

T:+44 28 9026 5886 
E: Madison.bowyer@arthurcox.com 
https://www.arthurcox.com/