The High Court maintains that there is no rule of legal rank protecting this practice.
The Supreme Court has declared that it is contrary to law for private security companies to require new employees to submit a certificate or written declaration that they have no criminal record.
The Labor Chamber dismissed the appeal filed by Securitas Seguridad Espaa SA against the decision of the National High Court, which sentenced the company to end the practice of requesting a certificate or declaration from newly hired workers that He has no criminal record in the last 5 years. countries in which they have lived.
In line with the now confirmed conviction, the court states that criminal records are personal data that is subject to a duty of confidentiality, so their knowledge is not public and is data protected by a fundamental right to data protection. Which derives from both Articles 18.4 of the Constitution and Article 8 of the European Convention on Human Rights.
Sentencing, a presentation by Judge María Luz García Paredes, recalled that criminal record prevention, investigation, detection or remediation for purposes other than the prosecution of criminal offenses or the execution of criminal sanctions may be carried out only if it is protected. A law is made.. and in this case, the court says, “We are not facing a situation in which the company has a law that protects it from employees requiring their criminal records.”
The court emphasizes that in the framework of employment relations affecting private security guards, it is forgotten that those who wish to work as security guards have access to selection tests to obtain professional qualifications. A criminal record is required for this and it is issued. Professional qualification is administrative qualification only. “It is sufficient for the security guard to prove that he is in possession of a professional identity card to enable him to participate in the functions which he may perform with it, so as not to withdraw the public document of professional recognition.” , until the relevant process, either to disqualify him or any other condition which precludes him from being able to do the said activity, does not require him to disclose to the employer any data other than the possession of the authorization document.
Similarly, the judgment indicates that the administration is competent to quash its case as soon as it has credible knowledge of the existence of a criminal record, “it should act accordingly and, ultimately, process the relevant administrative process.” Termination of the authorizations granted, i.e., the ability of private security personnel to control compliance with the requirements necessary to maintain authority is of an administrative nature and only through this intervention can lead to the extinction of that authority. who is about to take to obstruct the performance of the professional activity to which he is connected”.
As a result, the Chamber has concluded that there is no rule of legal rank that protects the company’s action against punishment or intentional collection of personal data related to criminal offenses, even if the information is agreed upon by the worker because it is personal data. . who have special protection.
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