With GDPR D-Day looming less than a month away, there is a noticeable increase in the work which companies and particularly HR teams are doing to prepare for 25 May.
There are many aspects of GDPR with which busy HR professionals need to get to grips. This article aims to help with issues relating to the lawful grounds for processing employee data, the types of data about employees which you will be able to hold, and employee privacy notices. This will be relevant once a data protection audit has been conducted and the employer has established the flow of data throughout its business.
Out with consent (mostly)
During the last couple of decades, employers – almost universally – have relied on employees giving their consent to processing their data, despite the fact this is probably not compliant with the Data Protection Act. This means that most contracts of employment include a data protection clause under which employees purportedly give their consent to their employers processing their data. Many contracts of employment also contain a clause which requires the employee to submit to a medical examination at the request of the employer and the results of that examination to be disclosed to the employer.
Both such clauses need to be fundamentally changed as GDPR makes it clear that consent can only be valid if freely given, which means that there has to be a genuine choice as to whether or not to provide consent. The general data protection clause should therefore simply refer the employees to the employer’s staff privacy notice in terms of how their employer will process their data. It is advisable for employers to include a contractual obligation on employees to comply with the data protection policy which should set out the rules for employees when they are dealing with other people’s personal data in the course of their duties. The clause relating to medical examinations will have to be limited to a requirement to attend such examination and then the consent to disclosure will need to be sought at the time that consent under the Access to Medical Reports Act is requested.
In with contract, legal obligation and legitimate interests
Instead of relying upon consent, employers will generally need to rely on three main lawful grounds to process general employee data:
- the performance of the employment contract (or another contract to which the employee is a party), such as paying the employee and providing contractual benefits;
- a legal obligation on the employer (such as reporting income to HMRC); and
- the employer’s legitimate interests.
Where possible, it is advisable to rely on performance of the contract or legal obligation as these are absolute grounds. The difficulty with relying upon legitimate interest is that this requires a balancing exercise between the interests of the employer and the rights and freedoms of the employee. It is also possible for employees to challenge data processed on the grounds of the employer’s legitimate interest.
Special personal data
Special personal data (or as we used to call it, “sensitive personal data”) – for example, information about health, political opinions, racial origin, sexual orientation, religion and biometrics – poses a few extra problems.
For employers to be able to process special personal data, they need to be able to rely on of one the above reasons AND a ground for processing special personal data which significantly does not include legitimate interests. There are two main special data grounds which will be relevant:
- processing is necessary to comply with an employer’s obligation or to give an employee rights under employment law (so this will apply, for example, to processing absence records for the purpose of paying statutory sick pay); or
- processing is necessary to assess the working capacity of an employee (which will cover quite a lot of health data held by employers).
However, if you use biometric data such as photographs of employees on the company intranet or in marketing materials or you use fingerprints to access secure buildings, the above grounds will not assist. It is possible that you may be able to ask employees for explicit consent (another of the special data grounds) providing that they have a genuine choice and can refuse without suffering any detriment; this might be helpful for the use of photos on a company intranet, for example. However, HR teams need to be very careful when seeking consent as it will only be valid if it complies with all the GDPR requirements such as:
- it is freely given;
- there is no potential detriment for refusing;
- there is a positive opt-in;
- it is in clear and plain language;
- it uses granular options (for example, if you want to use photos for various purposes, don’t bundle them altogether but rather give your employees a choice in relation to each purpose – they can agree to their photos being used on the company intranet but refuse to them being used in marketing material);
- employees are told that they can withdraw their consent at any time;
- the method available for withdrawal of consent is as easy as the giving of consent in the first place.
If any of the above are not satisfied, the consent will not be valid, which means that any previously obtained consents are unlikely to be valid under the GDPR. Having obtained any valid consents, HR teams need to make sure the records of the consents are kept and that they are regularly reviewed. We would suggest that consent should be refreshed on an annual basis.
Some businesses may be able to rely on the ground of substantial public interest in preventing crime or other unlawful activity where, for example, they use fingerprints for security measures. But this is an area which needs careful examination particularly if, for example, entry and exit logs are also used for disciplinary purposes when monitoring timekeeping.
Staff privacy notices
Once an employer has established all of the types of data which it holds about staff, the lawful ground on which it is relying to hold each type of data and in the case of legitimate interests has undertaken the balancing exercise between the employer’s interests and the right and freedoms of employees, it will be in a position to be able to update its staff privacy notice.
There is a detailed list of information which has to be included in a privacy notice:
- the name and contact details of the employer;
- the contact details of any data protection officer;
- the categories of personal data obtained;
- the source of the personal data (e.g. recruitment consultants, job boards, clients/customers, and colleagues, as well as the employee themselves);
- the purposes of the processing (i.e. why you need the data);
- the lawful basis for the processing (i.e. which of the above grounds you are relying upon);
- the legitimate interests for the processing (merely stating “legitimate interests” is not enough; you need to identify the interest);
- details of any automated decision making used by the employer (i.e. decisions made solely by automated means without any human involvement such as recruitment decisions based solely on psychometric testing);
- the rights available to individuals in respect of the processing. We are used to focusing on subject access requests, but employees now have far more extensive rights than simply the right to access their data. They also have: the right to rectification (i.e. to have inaccurate data corrected or incomplete data completed); the right to object to processing on certain grounds; the right of erasure (the so-called “right to be forgotten”; the right to portability (i.e. the right to have some of their data transferred to themselves or to another employer in an electronic format); the right to restrict some processing; and the right to require a human decision to be made where the employer uses automated decision making;
- whether or not the employee is under a statutory or contractual obligation to provide the personal data;
- the recipients or categories of recipients of the personal data (i.e. with whom do you share employee data – group companies, benefit providers, etc.?);
- the details of transfers of the personal data to any third countries or international organisations and details of protections in place for any transfers outside of the EU;
- retention periods for the personal data; and
- the right to lodge a complaint with the ICO (Information Commissioner’s Office).
All of the above information has to be included in the notice which is nonetheless:
- easily accessible; and
- uses clear and plain language.
There is a very obvious tension between being concise and providing all the information required!
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.