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| Fair Obtaining and Processing | In order to demonstrate compliance with Acts’ security requirements, at least one of the  provisions must meet such norms:
• Employee consent.
• Where the performance is necessary for the performance of a contract to which the data subject is parity.
• For compliance with a legal obligation to which the employer is subject.
• Where the processing is necessary for the purposes of the legitimate interests pursued by the employer or by a third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the fundamental rights and freedoms or legitimate interests of the data subject.
Consent is not generally a satisfactory legitimiser in an employment context, as it can be argued that consent is not freely given. However, if an employer offers a biometric as an option, then consent may be seen to be freely given.
While the “legitimate interest” provision may seem attractive, it requires the balance to be struck. What is acceptable in one case may not be in another and an employer seeking to rely upon this provision must take into account the potential effect upon employee privacy rights.
Fair obtaining of sensitive data
If a biometric identifies sensitive data (such as data relating to an employee’s health), at least one provision of section 2B of the Acts must be met in addition to those mentioned above. These provisions include:
• The explicit consent of employees.
• Where the processing is necessary for the purpose of exercising or performing any right or obligation which is conferred or imposed by law on the employer in connection with employment.
• Where the processing is necessary for the purposes of establishing, exercising or defending legal rights.
Any legal obligation to be aware of the presence of employees does not require a biometric system. A similar case can be applied to employers who seek to justify a system as necessary to defend their own rights. “Necessary” is the key word with both these provisions.
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