Workplace collection of Biometric Data

Does the collection of biometric data by employer violate privacy?

For the first time in Australian history, an employee was fired for refusing to submit biometric finger scanning data required by his employer.

The employee believes that he had been wrongfully terminated. After he was denied an unfair dismissal claim by an Australia’s Fair Work commissioner, the employee appealed to the ​Australia’s Fair Work Commission (FWC) full bench. He argued that the FWC failed to consider whether the request to comply with the fingerprint scanning policy was lawful and reasonable, particularly when the employee refused to consent to the disclosure of his biometric data. The employee was concerned about the collection of sensitive data and a potential violation of the Australian Privacy Act.

The Fair Work Commission Full Bench granted permission to appeal, as it was satisfied that the matter raises “important, novel and emerging issues,” which the full bench has not previously considered. The FWC will consider current technology and privacy rights in its ruling, which could lead to future standoffs  between employers and employees over the collection of biometric information.

What if this happened in Europe?

According to EU GDPR, the processing of employees’ biometric data by an employer would normally require consent. “For consent to be valid, it must be freely given. Where the employer threatens to fire the employee if they do not give consent to process their biometric data, such consent is unlikely to be freely given,” comments Dr Bostjan Makarovic, Aphaia’s Managing Partner.

Do you require assistance with GDPR and Data Protection Act 2018 compliance? Aphaia provides both GDPR adaptation consultancy services, including data protection impact assessments, and Data Protection Officer outsourcing.

Horlane Mbayo

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