A Level and GCSE Results and Data Protection

Whatever the rights and wrongs of the English A Level grade markings in 2020, upset students frustrated by their marks might want to look to the GDPR and the Data Protection Act 2018 and in particular Article 22.

Article 22 gives individuals the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or significantly affects him or her.

There are exceptions to this where the decision is authorised by law where there are suitable measures to safeguard the individual’s rights and freedoms and legitimate interests. This also needs to be considered in conjunction with section 14 of the Data Protection Act 2018, which expands on this exception and gives the individual 1 month to request the reconsideration of the decision or take a new decision that is not based solely on automated processing.

This could give rise to some interesting issues:

• If Article 22 applies, can students ask for their grade to be reassessed individually (and if so, how would that work)
• Does the teacher/centre input of predicted grades mean that Article 22 does not apply because there is some human involvement? Was their actual involvement sufficient to disapply Article 22?
• Was Ofqual’s data protection impact assessment, which they presumably carried out, adequate?

Even more fundamentally, the GDPR has key principles including the requirement to process data accurately and fairly. While there can be no perfect substitute for not actually taking exams, can adjusting a student’s predictions based on results from other students from the same school in previous years ever be fair  to that individual. While it may be reasonable on a statistical basis, can it be on an individual by individual basis.

In Norway, their data protection authority has notified the International Baccalaureate Organisation exam board that it thinks that it has processed personal data inaccurately and unfairly in the way they have predicted exam grades though at the time of writing this is not a final decision.

Teachers and Schools

Schools and teachers themselves might not escape scrutiny. They too have an obligation to process data fairly and accurately and so if they inflated the predicted grades of some of their weaker students and that then resulted in their stronger students’ grades being reduced by Ofqual, this could create problems for schools and teachers.

Unhappy students should take specific and urgent advice on what to do next as there are applicable time limits both under the data protection legislation and how they progress to the next stage of their studies.

If you have any questions in relation to the above or concerns about your business, contact Clive Halperin, Head of Corporate & Commercial, directly on [email protected] or 0207 822 2220.

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