European Union: GDPR Preparation For HR Teams

Last Updated: 1 May 2018
Article by Rachel Tozer

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:

  • concise;
  • transparent;
  • intelligible;
  • easily accessible; and
  • uses clear and plain language.

There is a very obvious tension between being concise and providing all the information required!

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

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

Similar Articles
Relevancy Powered by MondaqAI
Shepherd and Wedderburn LLP
Ogletree, Deakins, Nash, Smoak & Stewart
Wright Hassall LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Shepherd and Wedderburn LLP
Ogletree, Deakins, Nash, Smoak & Stewart
Wright Hassall LLP
Related Articles
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
Registration (you must 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 (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

To Use 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.


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.


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