Workplace use of facial recognition and fingerprint scanning

February 2024

Just because you can use biometric data, doesn’t mean you should

The use of biometric data is escalating, and recent enforcement action by the UK Information Commissioner’s Office (ICO) concerning its use for workplace monitoring is worth taking note of. We share 12 key considerations if you’re considering using facial recognition, fingerprint scanning or other biometric systems.

In a personal context, many use fingerprint or iris scans to open their smartphones or laptops. In the world of banking facial recognition, voice recognition, fingerprint scans or retina recognition have become commonplace for authentication and security purposes. The UK Border Force is set to trial passport free travel, using facial recognition technology. And increasingly organisations are using biometrics for security or employee monitoring purposes.

Any decision to use biometric systems shouldn’t be taken lightly. If biometric data is being used to identify people, it falls under the definition of Special Category Data under UK GDPR. This means there are specific considerations and requirements which need to be met.

What is biometric data?

Biometric data is also special category data whenever you process it for the purpose of uniquely identifying an individual. To quote the ICO;

Personal information is biometric data if it:

  • relates to someone’s physical, physiological or behavioural characteristics (e.g. the way someone types, a person’s voice, fingerprints, or face);
  • has been processed using specific technologies (e.g. an audio recording of someone talking is analysed with specific software to detect qualities like tone, pitch, accents and inflections); and
  • can uniquely identify (recognise) the person it relates to.

Not all biometric data is classified as ‘special category’ data but it is when you use it, or intend to use it, to uniquely identify someone. It will also be special category data if, for example, you use it to infer other special category data; such as someone’s racial/ethnic origin or information about people’s health.

Special category data requirements

There are key legal requirements under data protection law when processing special category data. In summary, these comprise:

  • Conduct a Data Protection Impact Assessment
  • Identify a lawful basis under Article 6 of GDPR.
  • Identify a separate condition for processing under Article 9. There are ten different conditions to choose from.
  • Your lawful basis and special category condition do not need to be linked.
  • Five of the special category conditions require additional safeguards under the UK’s Data Protection Act 2018 (DPA 2018).
  • In many cases you’ll also need an Appropriate Policy Document in place.

Also see the ICO Special Category Data Guidance.

ICO enforcement action on biometric data use in the workplace

The Regulator has ordered Serco Leisure and a number of associated community leisure trusts to stop using Facial Recognition Technology (FRT) and fingerprint scanning to monitor workers’ attendance. They’ve also ordered the destruction of all biometric data which is not legally required to be retained.

The ICO’s investigation found the biometric data of more than 2,000 employees at 38 leisure centres was being unlawfully processed for the purpose of attendance checks and subsequent payment.

Serco Leisure was unable to demonstrate why it was necessary or proportionate to use FRT and fingerprint scanning for this purpose. The ICO noted there are less intrusive means available, such as ID cards and fobs. Serco Leisure said these methods were open to abuse by employees, but no evidence was produced to support this claim.

Crucially, employees were not proactively offered an alternative to having their faces and fingers scanned. It was presented to employees as a requirement in order to get paid.

Serco Leisure conducted a Data Protection Impact Assessment and a Legitimate Interests Assessment, but these fell short when subject to ICO scrutiny.

Lawful basis

Serco Leisure identified their lawful bases as contractual necessity and legitimate interests. However, the Regulator found the following:

1) While recording attendance times may be necessary to fulfil obligations under employment contracts, it doesn’t follow that the processing of biometric data is necessary to achieve this.

2) Legitimate interests will not apply if a controller can reasonably achieve the same results in another less intrusive way.

Special category condition

Initially Serco Leisure had not identified a condition before implementing biometric systems. It then chose the relevant condition as being for employment, social security and social protection, citing Section 9 of the Working Time Regulations 1998 and the Employment Rights Act 1996.

The ICO found the special category condition chosen did not cover processing to purely meet contractual employment rights or obligations. Serco Leisure also failed to produce a required Appropriate Policy Document.

Read more about this ICO enforcement action.

12 key steps when considering using biometric data

If you’re considering using biometrics systems which will be used to uniquely identify individuals for any purpose, we’d highly recommend taking the following steps:

1. DPIA: Carry out a Data Protection Impact Assessment.

2. Due diligence: Conduct robust due diligence of any provider of biometric systems.

3. Lawful basis: Identify a lawful basis for processing and make sure you meet the requirements of this lawful basis.

4. Special category condition: Identify an appropriate Article 9 condition for processing special category biometric data. The ICO says explicit consent is likely to most appropriate, but other conditions may apply depending on your circumstances.

5. APD: Produce an Appropriate Policy Document where required under DPA 2018.

6. Accuracy: Make sure biometric systems are sufficiently accurate for your purpose. Test and mitigate for biases. For example, bias and inequality may be caused by a lack of diverse data, bugs and inconsistencies in biometric systems.

7. Safeguards: Consider what safeguards will be necessary to mitigate the risk of discrimination, false acceptance and rejection rates.

8. Transparency: Consider how you will be open and upfront about your use of biometric systems. How will you explain this in a clear, concise, and easy to access way? If you are relying on consent, you’ll need to clearly tell people what they’re consenting to, and consent will need to be freely given. Consent: Getting it Right

9. Privacy rights: Assess how people’s rights will apply, and have processes in place to recognise and respond to individual privacy rights requests.

10. Security: Assess what security measures will be needed by your own organisation and by any biometric system provider.

11. Data retention: Assess how long you will need to keep the biometric data. Have robust procedures in place for deleting it when no longer required.

12. Documentation: Keep evidence of everything!

More detail can be found in the ICO Biometric Data Guidance.