ii. Agency basics for IT contractors – CV privacy
IT contractors often ask whether or not a recruitment agency, or employment business, needs their personal 'OK' before their CV is sent to each IT-hiring company on its books. Contractors need to know whether or not they have a say about where - and to whom - the agency forwards their CV to.
There are five dimensions to this answer.
1. The provisions of the Data Protection Act 1998 will apply in any event, to the extent that the CV is personal data (i.e. to the extent that it identifies the individual, or that the individual may be identified from it). Unauthorised disclosure of personal data may give rise to liabilities and penalties for the discloser under that act.
2. Unless the individual has already opted out, the agency regulations will apply.
In particular, regulation 28 provides that information relating to a work-seeker may not be disclosed without the work-seeker's prior consent other than for providing work finding services to that work-seeker, or
- for the purposes of legal proceedings, or
- to the work-seeker's professional body (if any).
- information relating to a work-seeker may not be disclosed to the work-seeker's current employer without the work-seeker's prior consent (which has not been withdrawn); and
- an Employment Agency or Employment Business may not make provision of services conditional on such consent.
This suggests that it may be unwise for an agency to rely on a general consent given at the outset, and therefore that procedures should be in place to ensure that before a work-seeker's details (even omitting the name) are sent to a hirer, a check is made to see that the prospective hirer who is to be sent details is not the current engager of the work-seeker.
If the hirer is in fact the work-seeker's present engager, at the very least a further check should be made to ensure that the agency has not been notified that such consent has been withdrawn; ideally, the work-seeker should be expressly asked to confirm such consent.
3. A CV is a work in which copyright subsists; therefore the copyright owner has the right to control its copying and distribution. The individual may specifically state on the CV that it is copyright, and that his/her consent should be obtained prior to any copying/distribution.
4. A CV will contain information which its subject may regard as confidential; ideally, the individual should specifically state on the CV that it is confidential, and that his/her consent should be obtained prior to any disclosure.
So there are various legal means by which the individual has the right to restrict to whom his CV is disclosed.
In reply, the agent may say that if he is to find a position for the applicant, then he needs to be able to circulate details, and the more freedom he has to circulate them, the better the chance of getting a suitable position. And that of course is a fair point.
The wise contractor will mark his/her CV as copyright and confidential, and then seek to agree parameters with the agency as to what may be disclosed and to whom, and the circumstances in which the agent must refer back to the contractor before making disclosure.
CUK was advised by Roger Sinclair, a legal consultant at Egos, an IT contractor advisory
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