UK: GDPR: Preparing For Change! What Do Employers And HR Teams Need To Know?

Part 3: Lawful Processing

In the third of our series on the General Data Protection Regulation (GDPR) and its effects on employers and HR departments, we concentrate on lawful processing under the GDPR and how employers will be affected by the new rules.

What is lawful processing?

When your organisation processes personal data it should only do so where it has a lawful basis; this is a fundamental rule that underpins everything your organisation does with personal data and is key to compliance. Whilst this obligation existed under the Data Protection Act 1998, under the GDPR, the legal bases or conditions, as they are often referred, that your organisation has to meet, have, for the most part, been augmented or changed (but not necessarily all in a negative way!)

There are six legal bases (conditions) for processing data under the GDPR:

  1. Contractual necessity: You need to process someone's personal data to perform a contract you have with them; for example, where you have a contract with an individual to supply goods or services.
  2. Legal obligation: Where you need to process an individual's data because your organisation has to comply with a legal obligation under UK or EU law.
  3. Protect life: necessary to protect someone's life.
  4. Official function: You need to process data in order to carry out an official function or task which is in the public interest and you have a basis for proceeding under UK law. In most cases it will apply to public bodies.
  5. Legitimate interest: Where you are a private-sector organisation without consent, and you have a genuine and legitimate interest (which includes commercial benefit), so long as this is not outweighed by harm to an individual's rights (the "legitimate interest" basis). Please note: legitimate interests will no longer apply to Public Bodies.
  6. Consent: The data subject has consented to the data processing.

No one condition is better than or more important than the other; however one condition may be more appropriate over another depending on the circumstances. This is particularly relevant in the case of the last condition in this list for data processing; that of consent. Consent was a lawful basis for processing under the DPA and remains so under the GDPR, however it has been changed significantly and now includes additional requirements which will mean that the debate on whether employers could, or rather should, use consent as its legal basis is brought to an end. Employers will find it very difficult to rely on this basis to process employee data from 2018.

Time to move away from consent?

Employers and HR teams have relied on consent to process data in many cases despite there being dubiety as to whether consent was a lawful basis in the context of the employment relationship; however after the introduction of the GDPR on 25 May 2018, employers will, in most cases, be required to find an alternative basis for lawful processing of employee data.


Consent must be:

  • freely given and unambiguous; and
  • as easy to withdraw as it was to give.

In addition:

  • in order to be considered to be freely given, "consent should not provide a valid ground for the processing of personal data in a specific case where there is a clear imbalance between the data subject and the controller" (i.e. the employee / employer relationship);
  • the request for consent must be clearly distinguishable from the other matters in a contract; and
  • where the contract requires a data subject to consent to the processing of their personal data where the consent is not necessary for the performance of the contract it is likely that the consent will be invalid.

So in the employment scenario, most template employment contracts have pretty much standard data protection consent clauses bundled up in the employment contract itself, that presents a couple of issues – how does an employee withdraw their consent to the processing in that context? With great difficulty; and realistically how freely given was it? Did your employee really have a choice? Arguably, no.

And was the consent really necessary for the processing of the contract in the first place? In many cases the answer is no as there was an alternative valid legal basis for processing.

It is likely that employers and HR teams will (and should) rely on a number of other valid conditions for legitimate processing, these will be:

  • legitimate interests of the business (with the exception of public authorities);
  • contractual necessity (for example: processing for the purposes of paying your employees); and
  • necessary for the compliance with a legal obligation (for example: having to process tax return details with the tax office).

Each of these conditions is narrowly construed and careful consideration will need to be made as to which is appropriate to each circumstance.

What should you be doing?

  • You should review your policies and practices including employment contracts to ensure they are GDPR compliant.
  • Organisations should be transparent about the nature of data processing in terms of the data used, the purposes for which the data is used and where it is processed.
  • Where consent is relied on for data processing, find an alternative and record this.
  • Identify employees who will require training on data protection.
  • Read our blogs and contact our team if you have any questions!

Read our previous blogs in this series:

Part 1: Overview of the new rules
Part 2: Employee rights under the GDPR

© MacRoberts 2017


The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.

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

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

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.