India: Data Considerations In Employee Investigations In India

Prologue

There has been a surge in internal and employee-related investigations at an organizational level over the last couple of years. This may correspond to an increase in statutory requirements and disclosures pertaining to certain allegations, or concerns arising out of internal complaints from employees, external complaints from stakeholders, whistleblower complaints or even organization-driven investigations. Updating policies, handbooks and codes of conduct along with training employees at all levels have become top priority. It is not just the famous cases which hit newspaper headlines due to involvement of CXO's; internal investigations have become inevitable.

As is the case with most investigations, internal employee investigations are data-heavy and involve collection, handling, storing and processing a large amount of employee data. Often, organizations engage external advisors including lawyers, auditors and forensic experts to assist in the investigation process. Further, as in the case of multi-national corporations (MNCs) in India, overseas group entities may also be involved in overseeing or assisting in the process. Hence, the process may not be exclusively between the employer organization and employee, but other entities are also added to the manifest to ensure compliance across jurisdictions based on their presence.

A borderless world

Organizational work-related data in custody with an employee may not be confined to an office computer anymore but may also be accessed or stored on an employee's mobile, tablet or laptop, whether organization owned or not, and in more recent cases even wearables such as smart watches and IoT driven home devices. It is not uncommon to notice individuals checking their work emails on their Fitbit at the gym over the weekend!

In a seamless and borderless world of data, managing data privacy concerns of the employee and statutory compliances under law, including where foreign law compliances may be triggered in case of MNCs, is a challenge. In this piece, we attempt at dissecting some of the major considerations relating to employee data that an organization should tackle when conducting employee investigations.

It's all in the data

Data protection in India is currently governed by the Information Technology Act, 2000 ("IT Act") and the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 issued thereunder ("Data Protection Rules"). The IT Act and Data Protection Rules contain provisions on confidentiality, privacy and security for information stored in a computer resource and protect sensitive personal data or information collected from individuals by corporates.

The Indian data protection rules broadly protect two categories of data pertaining to individuals, 'personal data' and 'sensitive personal data'. Personal data relates to an individual, which either directly or indirectly in combination with other information, may be capable of identifying such a person. Personal data of an individual could include a person's name, contact details, address, identifier etc. Sensitive personal data on the other hand consists of specific items of data, namely passwords, financial information, physical, physiological and mental health condition, sexual orientation, medical records and history, and biometric information.

As such, there are no specific compliances under the Indian data protection rules for collection, handling or storage of an individual's personal data although in case of unauthorized sharing or misuse of such information causing harm to the individual, penalties may be applicable in the form of imprisonment and fine. On the other hand, there are certain compliances applicable to entities that collect, handle or store sensitive personal data of individuals, and organizations would need to adhere to such compliances when conducting internal investigations. One may note here that such compliances may not need to be complied with in case of furnishing employees' sensitive personal data as part of court or enforcement agencies' proceedings or investigations.

When do organizations need to sit up?

Typically, employee data relating to work and the workplace should not contain their sensitive personal data, but it is not uncommon for employee's financial information (such as bank account numbers in case of financial investigation), biometrics for attendance record details, health records in case of medical situations etc. to be involved and collected as part of the investigation process. In cases wherein the employee's sensitive personal data is collected, handled or stored by the employer organization (or any third party as mentioned above, on the employer's behalf), certain compliances should be adhered to. In cases, wherein organizations engage external advisors including lawyers and forensic experts to assist in the investigation process, or in the case group entities are involved in the handling of employee sensitive data, such third parties if located in India may also need to comply with some of the below compliances.

Major compliances to be undertaken by the orga

  1. Providing the employee with adequate notice and disclosure that their sensitive personal data may be collected for the purpose of an organization-driven investigation. Essentially, the employee should have knowledge of (a) the fact that sensitive personal data is being collected; (b) the purpose for the collection of such data; (c) the intended recipients of such data; and (d) the name and address of third parties collecting/retaining/processing such data (if applicable).
  2. Obtaining an explicit consent from the employee if the employee's sensitive personal data is contemplated to be collected for the investigation.
  3. Having a privacy policy in place, which should contain clear and accessible statements of the practices and policies of the organization collecting the sensitive personal data, the type of sensitive personal data collected, the purpose of collection and usage of the sensitive personal data, onward disclosures, if any, and the security practices and procedures implemented in relation to the sensitive personal data of the employee.
  4. Giving the employee the right to access, review and correct the sensitive personal data of theirs provided.
  5. Appointment of a grievance officer that should address any grievances of the employee in relation to the handling of their sensitive personal data as part of the investigation.
  6. If sensitive personal data of the employee is sought to be transferred to a third party such as an external service provider or a group entity of the employer organization, then specific consent should be obtained from the employee, and the employer organization should ensure that the recipient entity adheres to the same level of data protection as adhered to by the employer organization as required under the Indian data protection rules.

Whose device is it anyway?

Organization owned devices

Organization owned devices such as mobiles, tablets and laptops are typically owned by the employer organization and provided to employees on a temporary basis or during the course of their employment with the employer. Such devices are considered property of the organization and not personal property of the employee. Hence, organizations when conducting an investigation requiring access to such devices, may not require a specific consent from the employee vis-à-vis accessing and inspecting the device.

To close the loop on this, should the organization owned device not contain any sensitive personal data of the employee but only work related, then the organization need not require a consent from the employee to access and inspect such device as part of its investigation.

Bring Your Own Device

In recent times, it is common for organizations to allow employees to use their personal devices for work related communications, as per a 'bring your own device' (BYOD) policy. This policy essentially allows, for instance, an employee to use her/his mobile phone, tablet or laptop to carry out work-related functions and work-related communications. Hence, organization and work-related data would sit on the employee's personal devices in such cases.

Such devices used under a BYOD policy should be construed as the personal property of the individual and not property of the organization, in spite of it containing organization and work-related data. In such case, the IT Act provides that if any person accesses a computer system or network of another person, or downloads, copies or extracts any data from such computer system or network without permission of the owner, then such person may be penalized and be made to pay compensation to the affected person. To avoid attracting this penal provision, the organization would need the employee's consent to inspect the employee's device as part of its investigation.

Take-Aways:

As an investigation begins, obtaining data of custodians is the natural starting point. In such a situation, the legal team assisted by the forensic team will, no doubt, arrive at a bridge where they will need to obtain data from a device where sensitive personal data is likely to be stored. In such a situation, the company's policies, manual and/or employee handbook are usually the first port of call to understand the rights of the company and its investigative team.

It would be pertinent to note that the organization would most probably (prior to and even during the course of the investigation) already be collecting, handling and storing sensitive personal data of its employees for instance bank account details to pay salaries or medical records data as part of its recruitment process requirements. The organization may, thus, already be adhering to the compliances under the data protection rules. In such cases, incremental but tailor-made changes may be made at an organization level to ensure that the compliances undertaken cover the organization's investigation as well, for instance updating the employee privacy policy, manual or handbook and taking necessary employee consents.

However, the overall approach of the organization should be looked at holistically including from a reputational perspective. It is vital for an organization to have its policies and employee documentation updated and in check prior to commencing an internal investigation. It would also be important for organizations to word their policies, manuals, handbooks, documentation and consents appropriately so as to not cause ambiguity between an employee and itself. It is critical to ensure that these manuals/handbooks build in adequate safeguards and proper approvals and consents from employees with respect to not only obtaining data stored on company owned devices/personal devices but also processing, imaging and transferring them in any part of the world, including to third party service providers or overseas group entities, if required.

When foreign elements come into play, such as collection of data from an employee that may be a citizen of a foreign country, or when a foreign organization comes into the mix, then consulting foreign counsel on compliances should also be carried out, so as to not violate foreign law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions