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By: Eileen A. Pluijm
Russell Advocaten
Amsterdam, Netherlands

Employers are continuously implementing new, more advanced security measures. For instance, more and more employers are using a fingerprint scanning authorisation system. Employees can access a computer, cash register or company premises only with their fingerprints. But is that allowed?

The Amsterdam District Court ruled that shoe shop Manfield may not oblige employees to use a fingerprint authorisation system. This is a violation of the General Data Protection Regulation (GDPR).

Fingerprint authorisation system

Employees of shoe shop Mansfield previously logged into the cash register with a personal numerical code. Mansfield substituted this numerical code by a fingerprint authorisation system: from then on, employees could only log into the cash register system with their fingerprints.

A Manfield employee refuses to use the new system. According to her, the system infringes her privacy rights. Manfield and the employee go to court: does the employee rightly refuse to give her fingerprint?

Manfield

According to Manfield, the fingerprint scan authorisation system is necessary to protect sensitive data accessible through the cash register system, such as financial information and personal data of employees and customers. The old system with the numerical code cannot protect these data sufficiently.

Manfield was also faced with several fraud cases where employees had stolen money from the cash register. With the old system, employees could easily enter the numerical code of another employee, which made it impossible for Manfield to trace back who had stolen the money. These practices are impossible with the new system.

GDPR

The employee invoked the GDPR. Fingerprints are so-called “biometric data” and they may not be processed. This is only allowed in exceptional cases, for instance, with the employee’s consent.

Biometric data may be processed if identification with these data is necessary for authentication or security purposes. This is the case, for example, when access must be limited to small group of authorised persons, as, for instance, in a nuclear power plant. It is also important that the processing is proportional.

Please note: Asking consent from your employees to use personal data such as fingerprints is often not enough. Even then you can act in violation of the GDPR. This consent must be given freely, whereas this freedom is often not assumed in employment relationships.

District Court

Manfield falls at the first hurdle. According to the Court, the prevention of fraud on the part of the company’s employees is not considered to be ‘necessary for authentication or security purposes’. In addition, the judge has doubts as to the proportionality of the use of a fingerprint for fighting this fraud.

The Court does not share Manfield’s view that fingerprint authorisation is necessary for the protection of sensitive data either. The Court is of the opinion that Manfield did not sufficiently investigate alternatives. Manfield should have weighed the pros and cons of different systems, on the grounds of which they could have substantiated their choice for fingerprint authorisation. However, there is no such substantiation.

The Court concludes that Manfield’s fingerprint authorisation system is in breach with the GDPR. Therefore, Manfield is not allowed to oblige employees to use this system.

Our advice

On the basis of the GDPR, it is not prohibited to use fingerprints, iris recognition and other biometric data. However, the ruling shows that you must carefully consider the privacy interests of your employees and all alternatives when you consider to introduce such security measures.

You will often have to perform a Data Protection Impact Assessment (DPIA). This is mandatory where the data processing is likely to pose a high privacy risk for employees. With a DPIA, you can identify these privacy risks and the potential measures to limit them in advance. We will be happy to perform this assessment for you.

Do you have a works council (OR)? Don’t forget that the OR has a right of consent when the privacy policy is adapted.

More information

Do you want to learn more about the GDPR? Are you looking for assistance with the ‘GDPR-proof’ processing of personal data or with the execution of a DPIA? Please contact us: