The Labor Chamber of the Supreme Court has declared that it is contrary to law for private security companies to demand from newly incorporated workers a certificate or writing that they have no criminal record.
The High Court rejects the appeal filed by Securitas Seguridad España SA against the judgment of the National High Court that condemned the company to eliminate the practice of requesting newly hired workers a certificate or declaration that they lack criminal record in the last 5 years in the countries in which you have resided.
In line with the sentence now confirmed, the court explained that the criminal records his personal data that are subject to a duty of confidentiality, so their knowledge is not public and it is data protected by the fundamental right to data protection. which emanated from both article 18.4 of the Constitution and article 8 of the European Convention on Human Rights.
The sentence recalls that the treatment of criminal records for fines 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 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 workers to have their criminal records."
The court recalls that in the framework of the employment relationship that affects private security guards, it is forgotten that criminal records are a requirement for access to the selection tests to obtain the professional qualification of those who aspire to work as security guards and this expedition 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 retracted, by the corresponding procedure, already Whether it is 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 employee other data other than being in possession of the authorization document.
In the same way, the sentence indicates that the Administration is competent in its 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 prevent the performance of the activity. professional to which it is knotted”.
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 criminal convictions or criminal offenses, regardless of whether the information has been consented by the worker because it is data individuals who enjoy special protection.
