ICO warns businesses over illegal use of biometric data

Companies which use biometric data to monitor employee attendance have been given a shot across the bows following an intervention by the data regulator over alleged illegal practices.

The warning comes after an Information Commissioner’s Office investigation into public service provider Serco Leisure, Serco Jersey and seven associated community leisure trusts into their use of facial recognition and fingerprint scanning.

The probe found that the companies have been unlawfully processing the biometric data of more than 2,000 employees at 38 leisure facilities for the purpose of attendance checks and subsequent payment for their time.

Serco and its affiliates failed to show why it is necessary or proportionate to use facial recognition and fingerprint scanning for this purpose, when there are less intrusive means available such as ID cards or fobs.

Employees have not been proactively offered an alternative to having their faces and fingers scanned to clock in and out of their place of work, and it has been presented as a requirement in order to get paid.

Due to the imbalance of power between Serco Leisure and its employees, it is unlikely that they would feel able to say no to the collection and use of their biometric data for attendance checks.

The ICO has now issued enforcement notices instructing Serco Leisure and the trusts to stop all processing of biometric data for monitoring employees’ attendance at work, as well as to destroy all biometric data that they are not legally obliged to retain. This must be done within three months of the enforcement notices being issued.

Commissioner John Edwards said: “Biometric data is wholly unique to a person so the risks of harm in the event of inaccuracies or a security breach are much greater – you can’t reset someone’s face or fingerprint like you can reset a password.

“Serco Leisure did not fully consider the risks before introducing biometric technology to monitor staff attendance, prioritising business interests over its employees’ privacy. There is no clear way for staff to opt out of the system, increasing the power imbalance in the workplace and putting people in a position where they feel like they have to hand over their biometric data to work there.

“This is neither fair nor proportionate under data protection law, and, as the UK regulator, we will closely scrutinise organisations and act decisively if we believe biometric data is being used unlawfully.”

The enforcement action comes as the ICO publishes new guidance for all organisations that are considering using people’s biometric data, outlining how they can comply with data protection law when using such information to identify people.

Edwards concluded: “This action serves to put industry on notice that biometric technologies cannot be deployed lightly. We will intervene and demand accountability, and evidence that they are proportional to the problem organisations are seeking to solve.

“Our latest guidance is clear that organisations must mitigate any potential risks that come with using biometric data, such as errors identifying people accurately and bias if a system detects some physical characteristics better than others.”

Last year, the ICO also published guidance on monitoring employees and called on organisations to consider both their legal obligations and their employee’s rights to privacy before they implement any monitoring.