The Supreme Court has declared that it is contrary to law for private security companies to require newly hired workers to present a certificate or written declaration that they have no criminal record.
The Social Chamber rejects the appeal filed by Securitas Seguridad España S.A. against the judgment of the National High Court that condemned the company to eliminate the practice of all its work centers of requesting from newly hired workers a certificate or declaration that they have no criminal record in the last five years in the countries in which who has resided.
In line with the sentence now confirmed, the court explains that criminal records are personal data that are subject to the duty of confidentiality, so their knowledge is not public and it is data protected by the fundamental right to data protection. which emanates from both article 18.4 of the Constitution and article 8 of the European Convention on Human Rights.
The sentence, a presentation by Judge María Luz García Paredes, recalls that the treatment of criminal records for purposes other than the prevention, investigation, detection or prosecution of criminal offenses or the execution of criminal sanctions can only be carried out when it is protected by a law . And in this case, adds the court, “we are not facing a situation in which the company has a law that protects it to require its criminal records from workers.”
The court emphasizes that in the framework of the employment relationship that affects private security guards, it is forgotten that criminal records are requirements for access to the selection tests to obtain the professional qualification of those who aspire to work as security guards and this Issuance of professional qualification is only administrative competence. “It is enough for the security guard to prove that he is in possession of the professional identity card to be able to attend to the functions that he can carry out with it, so that until that public document of professional accreditation is withdrawn, by the corresponding procedure, either to disqualify him or another situation that prevents him from being able to carry out said activity, he does not have to reveal to the employer other data than that of being in possession of the authorization document.
In the same way, the ruling states that the Administration is competent in his case to extinguish the qualifications as soon as it has reliable knowledge of the existence of a criminal record, “it must act accordingly and, ultimately, process the corresponding administrative procedure to extinguish the authorizations that were granted. That is, the competence to control compliance with the necessary requirements to maintain the authorization of private security personnel is of an administrative nature and only through this intervention can proceed to the extinction of the authorization that will to impede the performance of the professional activity to which it is tied”.
Consequently, the Chamber concludes that there is no rule of legal rank that covers the action of the company to collect personal data related to convictions or intentional criminal offenses, regardless of whether the information has been consented by the worker because it is data individuals who enjoy special protection.
Conforms to The Trust Project criteria
