Data Protection Act 2018

Racial and ethnic diversity at senior levels of organisations

9 (1) This condition is met if the processing—

(a) is of personal data revealing racial or ethnic origin,

(b) is carried out as part of a process of identifying suitable individuals to hold senior positions in a particular organisation, a type of organisation or organisations generally,

(c) is necessary for the purposes of promoting or maintaining diversity in the racial and ethnic origins of individuals who hold senior positions in the organisation or organisations, and

(d) can reasonably be carried out without the consent of the data subject,

subject to the exception in sub-paragraph (3).

(2) For the purposes of sub-paragraph (1)(d), processing can reasonably be carried out without the consent of the data subject only where—

(a) the controller cannot reasonably be expected to obtain the consent of the data subject, and

(b) the controller is not aware of the data subject withholding consent.

(3) Processing does not meet the condition in sub-paragraph (1) if it is likely to cause substantial damage or substantial distress to an individual.

(4) For the purposes of this paragraph, an individual holds a senior position in an organisation if the individual—

(a) holds a position listed in sub-paragraph (5), or

(b) does not hold such a position but is a senior manager of the organisation.

(5) Those positions are—

(a) a director, secretary or other similar officer of a body corporate;

(b) a member of a limited liability partnership;

(c) a partner in a partnership within the Partnership Act 1890, a limited partnership registered under the Limited Partnerships Act 1907 or an entity of a similar character formed under the law of a country or territory outside the United Kingdom.

(6) In this paragraph, “senior manager”, in relation to an organisation, means a person who plays a significant role in—

(a) the making of decisions about how the whole or a substantial part of the organisation’s activities are to be managed or organised, or

(b) the actual managing or organising of the whole or a substantial part of those activities.

(7) The reference in sub-paragraph (2)(b) to a data subject withholding consent does not include a data subject merely failing to respond to a request for consent.