Private security companies may not require criminal records from their employees

The Supreme Court recalls that the Administration already checks these data when granting professional qualification.

The Supreme Court has ruled that private security companies may not require newly hired workers to provide a criminal record certificate because it is a practice contrary to law. As he recalled, the issuance or termination of the professional license for security guards is the responsibility of the Administration and this proves that the employee has no criminal record, so it is not necessary for the company to request this information.

In its sentence, the social chamber has explained that "criminal records are personal data that are subject to the duty of confidentiality." Thus, it has insisted that its knowledge "is not public" and it is data protected by the fundamental right to data protection that emanates from both article 18.4 of the Constitution and article 8 of the European Convention on Human Rights.

In 16 pages, the magistrates have recalled 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 law."

Thus, the Supreme Court has rejected the appeal presented by Securitas Seguridad España S.A. against the ruling of the National High Court that condemned the company to eliminate from all its work centers the practice 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 have resided.

In the resolution, for which Judge Maria Luz García Paredes was the rapporteur, the court pointed out that in this case "we are not facing a situation in which the company has a law that protects it to require its criminal records from workers ".

In this sense, the room has underlined that in the framework of the employment relationship that affects private security guards, it is forgotten that a criminal record is a requirement for access to the selection tests to obtain the professional qualification of those who aspire to work as guards. security 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 other than being in possession of the authorization document", the magistrates have indicated.

In line, the Chamber has specified that the Administration is competent to extinguish the authorizations as soon as it has reliable knowledge of the existence of a criminal record.

Consequently, the court has concluded that "there is no rule of legal rank that protects 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 deals with personal data that enjoy special protection.