Crooked worker database could land employers in trouble
OUT-LAW Radio, 19/06/2008
We investigate a new database of dishonest workers, and the
pitfalls that could lie in wait for participating employers
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT LAW radio, the weekly podcast that
keeps you up to date on all the twists and turns in the world of
technology law.
Every week we bring you the latest news and in depth features
that help you to make sense of the ever changing laws that govern
technology today.
My name is Matthew Magee, and this week we investigate a
proposed database for fingering dishonest employees that could land
everyone involved in trouble.
But first, the news:
News agency claims bloggers violate copyright
and
Pentagon hacker asks Lords to hold his extradition.
A major news agency has claimed that a blog's quotation of its
stories is copyright infringement and has demanded they be taken
down in a case which could redraw the lines of acceptable blog
behaviour.
The writer behind the blog has told OUT LAW that if Associated
Press continues its case it will be taking on the entire
blogosphere. "Linking to news articles with short excerpts is
common practice throughout the web, both on individual blogs and on
social news sites," said Rogers Cadenhead, who is behind the blog
Drudge Retort. "If AP intends to fight this one out, it'll be the
case of AP v. Everybody" he said.
AP has issued Drudge Retort with seven take down notices under
the US's Digital Millennium Copyright Act.
Though a spokesman for AP has told The New York Times that the news
wire is rethinking its position Cadenhead said that the notices
have not actually been retracted.
Pentagon hacker Gary McKinnon has asked the Law Lords to halt
his extradition to the US because US prosecutors abused the legal
process by engaging in plea bargaining.
McKinnon's lawyer, David Pannick QC, told the Lords hearing that
prosecutors had said he faced eight to ten years in jail if he
contested the charges, but a sentence of only 37 to 46 months if he
co operated.
He also said McKinnon was threatened with terrorism charges that
carry potential 60 year jail terms.
Lawyers for the Home Office, arguing for extradition, said that no
threats were issued by US authorities, and that the extradition
should be allowed to go ahead.
The Law Lords can block the extradition if they find that there
has been an abuse of process. A ruling is not expected for a
further three weeks.
That was this week's OUT LAW news.
The retail industry puts its losses from staff theft and
dishonesty at a staggering £350 million a year, yet the industry
says it often has no way of tracking who is responsible.
People who leave a company under investigation for wrongdoing or
even those dismissed for dishonesty just disappear, they say,
popping up in another job where they might repeat their bad
behaviour.
So industry body Action Against Business Crime decided to do
something about it. It's created a National Staff Dismissal
Register, a database on which companies can list staff they think
are dishonest, and which future employers can check.
But has it thought the plan through? Is there enough protection
for employees, who might face wrongful accusations that they never
even know about? And could employers and the AABC itself eventually
face damaging defamation lawsuits over false entries?
AABC Chief Executive Mike Schuck said that the organisation has
been careful to work with the Information Commissioner's office to
ensure that the rights of people on the database are respected.
Mike Schuck: We have designed the system with
the help of the Information Commissioner to ensure that the eight
Data Protection Principles are maintained and that subjects' rights
are protected on the database and on the information that will go
on to it. That the database complies with the Data Protection Act;
it complies with the Data Protection principles; it will be
operated in compliance with those principles.
Data protection law expert William Malcolm of Pinsent Masons,
the law firm behind OUT LAW, said that companies thinking about
contributing to the database must make sure that any information
they post is properly treated.
William Malcolm: With any sharing of data of
this type one has to be clear about the grounds on which it is
being shared so anyone contributing data to such a database would
be well advised to make sure that they have evidence of wrongdoing
and that they have an appropriate internal sign on procedure before
contributing data to the database. There are various exemptions
under the Data Protection Act which do allow sharing of data for
the prevention and protection of crime but one has to be satisfied
that that is the reason for the sharing. You know the key concerns
are ones of the evidence, ones of proportionality and ones of
process and making sure that all these things are kept in
place.
Schuck outlined the processes that are in place to try to reduce
the risk of malicious use.
Mike Schuck: Any company that wants to join the
database or become a member will be vetted and we'll vet them to
find out what their employment policies are, how they operate and
to ensure that they can comply with the Employment Practices Code
issued by the Information Commission, that they comply with the
Data Protection Act and it's only at that stage, once we're
satisfied that they can operate within those guidelines and within
those restrictions, that they will be permitted to join the
National Staff Dismissal Register.
Nonetheless this is a self regulatory system, relying on its
members and their employees to be honest. Pinsent Masons'
employment law expert Charles Rae says this is inherently risky.
One abusive entry and a person could find themselves unable to earn
a living, a pretty serious consequence.
Charles Rae: There's a real risk that this
register could be open to abuse. I think a serious fear is that
employees could have their future employment prospects severely
damaged by an employer who may put them on this register perhaps
without that being justified or even where, for instance, they may
bear a grudge against that employee or falsely accuse them of
something; and you know the risk there is that individuals are
potentially going to be treated as if they're criminals even though
say the police have never been contacted, no conviction has ever
been brought about. And you know an employee could see this as a
serious infringement of their ability to get future work.
Union body the Trades Union Congress told us that it had serious
concerns about the database. It said that the Criminal Records
Bureau existed to provide protection for employers and that the
danger of the new database is that employees might never know they
are even on it.
Malcolm advises any company considering participation to be open
and transparent, and to consult the UK's privacy regulator, the
Information Commissioner.
William Malcolm: I think that the guiding
principle of a database of this nature should be one of openness
and transparency. At the end of the day if people have been engaged
in some form of business crime and there is evidence to suggest
that that's the case and you have strong evidence and that's been
appropriately reviewed by someone internally, I can see no, you
know, reason why a business wouldn't want to be open about what
it's doing and its involvement in such a register. So I think
businesses that participate in such a scheme should be able to
justify their position to employees, to the employee base, to the
wider world and certainly to the UK Information Commissioner.
The problems are not just for wronged ex employees, though. If a
malicious entry is put in on behalf of a company, that company
could be on the hook. A defamation claim could reach not just to
the individual poster and their employer, but to the AABC itself.
Rae explains.
Charles Rae: Aggrieved employees may seek to
take legal redress against an employer such as for example a claim
for defamation if ultimately the employee believes that the placing
on the register of the specific details are defamatory. By the
employer placing the data on to the database in the first place
that they could find themselves liable for any offence that is
committed by doing that. And it's certainly the case that the
people running the register may also be finding themselves liable
by allowing people to access that information which means that they
are, in their own way, processing it and passing it on.
The AABC says it is relying on not being the publisher of the
information. Whether this will work will depend on whether it
checks or verifies data: the more pre publishing action it takes,
the more liable it is. Schuck admits, though, that it has not fully
investigated the issue.
Mike Schuck: We're not putting the false
information on there. We are relying on the data control of the
company that dismissed us to provide that information. We will take
steps to ensure that data is correct if we are approached by that
person to say this data is incorrect then we will speak to the
company that put it on. If necessary we will remove the data
ourselves.
Matthew Magee: I understand you're not the one
who's putting it on but you know in legal terms that's not the only
criterion that's used. I mean do you - is it your legal advice that
you have any liability at all?
Mike Schuck: I think that that has probably not
been fully explored at the moment. We're going to have to examine
that particular aspect.
The AABC claims to have unnamed major retailers signed up for
the system, but Rae believes the self regulation on which it relies
could leave employees and employers vulnerable.
Charles Rae: One of the problems of the list is
that employers are reliant on other employers putting people on the
register in good faith and on the basis that there are good reasons
for doing so. And what employers are going to have to run the risk
of is that there is information on that register that they may rely
on but they simply can't check. It's simply isn't clear that
there's any way of a future employer being able to vet whether
there's any merit behind an individual being put on the register.
Which really highlights what I think is one of the potentially huge
injustices to individuals here is that, you know, they have little
power.
That's all we have time for this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you know of a
technology law story? We'd love to hear from you on radio@out-law.com.
OUT-LAW Radio is taking another short break but make sure you tune
in next time; for now, goodbye.
OUT-LAW Radio was produced and presented by Matthew Magee for
international law firm Pinsent Masons.
