Three Employment Queries Answers

  1. Background information on applicants

Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party?

Under the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, an adult will not have to disclose his or her conviction in respect of a range of minor offences after seven years.

Data obtained by employers must be processed and held in compliance with data protection legislation. Any information in the public domain can generally be accessed within the context of data protection requirements.

In instructing a third party to conduct criminal background checks, the employer remains a data controller under the EU General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (as amended), and the third party acts as a processor as it would be processing the personal data of candidates on behalf of the employer.

The employer must ensure that the third party conducts all processing in compliance with the GDPR. Additionally, the employer would be required to enter a data processing contract with the third party, with that contract to contain each of the clauses required by article 28 of the GDPR. If an investigator is engaged, then the investigator must be registered with the Private Security Authority.

  1. Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment

Individual offers of employment can be made conditional upon satisfactory health checks, but a prospective employer may be liable under a discrimination claim if the offer is not confirmed based on the information disclosed by the health checks. The compensation available for pre-employment equality claims is €13,000.

Medical reports given by a medical practitioner responsible for an individual’s care are subject to data protection legislation and there must be a legal basis for processing such information.

Medical information about an individual also constitutes ‘sensitive personal data’ under the Data Protection Acts 1988 to 2018.

  1. Are there any restrictions or prohibitions against drug and alcohol testing of applicants?

Employers are required (under Section 8 of the Safety, Health and Welfare at Work Act 2005) to ensure the safety, health and welfare at work of all employees. This includes ensuring the prevention of improper conduct or behaviour that is likely to put employees at risk. An employer may require an applicant to submit to a drug or alcohol test to the extent that this is required to ensure that the applicant may safely carry out the proposed role. These tests must be necessary and proportionate.