An employer might wish to use genetic data in recruitment to identify candidates that are not suitable for a specific job because of a disease that they may already have, or to find out if there is an inherent likelihood of a particular disease developing.

An employer cannot make use of genetic data in relation to an employee or potential employee without the prior consent of the Data Protection Commissioner. This is a result of new data protection regulations that came into force on 8 October. They provide that processing genetic data in relation to the employment of a person is now a prescribed activity for the purposes of Section 12A of the Data Protection Acts 1988 to 2003.

This means that if you use genetic testing or genetic data of employees you must seek pre-approval by the Data Protection Commissioner in the manner anticipated by the section. Such focus on genetic testing is not new; the Article 29 Working Party in 2003 gave its non-binding view that the processing of genetic data in the field of employment should be prohibited in principle unless there are "exceptional circumstances". The area is also regulated by provisions in the Irish Disability Act 2005.

Because of the data protection principles dealing with use of genetic data, any employer seeking approval of its use of genetic data in the context of employment should seek assistance in preparing a submission to the Irish Data Protection Commissioner. The Data Protection Commissioner will need to be persuaded of the reasons for the use of genetic data of employees and any submission will need to take account of the law regulating the taking, use and recordkeeping of genetic data.

Employers that ignore this data protection law requirement do so at their peril. Increasingly the Data Protection Commissioner is taking a proactive approach to data protection law enforcement. Processing genetic data without the requisite approval is an offence.

For further information please contact Deirdre Kilroy.

October 2007.