All businesses who employ individuals process the personal data of those employees ("data subjects"). With the recently published Data Protection Bill 2018 providing insight into the local law derogations from the GDPR and relevant enforcement procedure provisions under Irish law, now is the perfect time for employers to review their preparations to ensure they are "GDPR-ready" by 25 May 2018.
1. CONFIRM THE BASIS ON WHICH EMPLOYEE DATA IS PROCESSED
Employers must have a lawful basis on which to process the personal data of employees. The GDPR provides six lawful bases under which an organisation may process personal data, as outlined our GDPR for Employers - Guide to Bases of Processing.
Employers should assess the basis on which they processes the personal data of employees and keep a record of this. Currently, the most commonly used basis of processing employee data is a consent clause contained in a contract of employment. Under GDPR, this practice will no longer be appropriate. In place of consent, employers should consider other more suitable lawful bases such as legitimate interests, contractual necessity and legal obligations, although the appropriate basis of processing will depend on the processing activity in question.
Having assessed the basis on which data is processed, employers should provide their employees with a Privacy Notice which explains in a clear and intelligible way how and why data is processed, and informs employees of their rights in respect of the bases of processing.
Current employees should be provided with the Privacy Notice before 25 May 2018 and new employees should be provided with the Privacy Notice before commencing employment. References to employee consent contained in the contract of employment and/or employee handbook should be removed and updated.
2. ASSESS WHY YOU ARE KEEPING DATA AND MAKE SURE YOUR POLICIES ARE "GDPR-READY"
The GDPR is based on seven core principles – transparency, purpose limitation, data minimisation, accuracy, storage limitation, integrity/ confidentiality and accountability. Under GDPR, employers are required to be in a position to demonstrate that they are GDPR compliant – having appropriate policies in place can assist with this.
Most employers have Data Protection policies in place. Some employers have Data Retention policies in place. Revising these policies and critically assessing the purpose of keeping employee data, having regard to the core principles of the GDPR, will help employers manage the new risks associated with GDPR breaches, including the imposition of administrative sanctions and the possibility of an employee taking a "data protection action" before the Circuit Court/High Court.
3. DEVELOP A DATA ACCESS REQUEST PROCESS
Employers are at this stage familiar with data access requests, and in particular the common use of such requests to obtain information in advance of claims relating to an individual's employment.
Data access requests under the GDPR require the presentation of more information within a tighter timeframe than the current regime (i.e. down from 40 days to one month). Employers must understand their obligations so a request can be managed effectively in accordance with the GDPR as soon as it arrives. Employers should ensure that they have sufficient staff to review the request.
Employers are advised to develop a system to manage data access requests which considers the form of the request, timing of the request, the additional information required to be provided with the request and when an employer might refuse a request based on the exceptions provided for under the GDPR and the Data Protection Bill 2018. See our GDPR for Employers – Data Access Request Process Map for an example of how this might work for your organisation.
4. CONFIRM INTERNAL GOVERNANCE MEASURES
Data controllers must be able to demonstrate compliance with GDPR on an ongoing basis, across a range of spheres relevant in the employment context, from managing records to responding to data access requests and data protection audits. This places a premium on maintaining proper records of data processing operations.
If employers have not appointed a Data Protection Officer ("DPO") to manage these requirements (and a DPO is not required for all employers), a structure should be in place to ensure that data protection matters (particularly breaches, responding to data subject requests and inspections) are dealt with efficiently by a competent individual.
Employers who are required to, or have chosen to, appoint a DPO will have to ensure that GDPR requirements in relation to DPOs apply. In the employment context any key issues that arise, the onus is on the employer to adequately resource the DPO and to ensure the independence of the DPO, which includes a prohibition on employers instructing the DPO regarding the exercise of the tasks outlined in Article 39 of the GDPR (i.e. informing/advising of obligations, monitoring compliance, training staff, providing advice, acting as a supervisory contact point). Employers should also be aware that where a DPO is performing other duties for the employer, the onus is on the employer to ensure that no conflict of interest arises. DPOs must directly report to the highest management level. A DPO may not be dismissed or penalised by an employer for the performance of Article 39 tasks.
5. PREPARE YOUR BREACH/ ENFORCEMENT PLAN
Employers should ensure that they are in a position to respond quickly to data breaches or on-site inspections.
Whilst the prospect of a site inspection is a concept contained within the current Data Protection regime, a new development is that employers must now notify the Commission of personal data breaches without undue delay and where feasible, within 72 hours of becoming aware of the breach. This does not apply where the personal data breach is unlikely to result in a risk to the rights and freedoms of the affected individuals. In addition, in certain scenarios (i.e. where there is a high-risk to the rights of individuals) employers are required to inform the affected individuals of a data breach. In assessing whether this is the case, employers should consider the nature of the personal data and the scope, context and purposes of the processing. Adopting a data breach response plan is best practice in terms of meeting data breach notifications requirements and minimising associated damage.
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.