Zamir Hamdy Hamdan explains the need to safeguard employees' personal data
It is unquestionably the case that a fair amount of most corporations' repositories of personal data include those of their employees. In fact, an employee's personal data is processed and retained by the employer even before the employment relationship begins - during the recruitment stage or when the services of a headhunter are utilised. This continues throughout employment and may even extend after its termination.
The Personal Data Protection Act 2010 ("PDPA") came into force on 15 November 2013, and imposes certain obligations on 'data users' in dealing with all personal data processed by them.
DOES THE PDPA APPLY TO EMPLOYEE DATA?
It appears the answer would be "Yes".
There was previously some ambiguity as to whether the PDPA would apply to employee data as it is stated to apply only to personal data in respect of "commercial transactions" (section 2(1)).
However, the Personal Data Protection Department ("PDP Department") published a Public Consultation Paper No. 3/2014 in February 2014 entitled "Guide on The Management of Employee Data" ("Employment Guideline"). The Employment Guideline has removed any such uncertainty as it states that "it is clear that employer-employee relationship is commercial and contractual in nature as it arises from a contract of services in exchange for remuneration and the PDPA applies to such a relationship". It must be noted, however, that to date, the Employment Guideline has yet to be implemented.
DOES THE PDPA APPLY AT RECRUITMENT STAGE?
The PDPA applies to personal data collected even at the recruitment stage. This should not be seen as a hindrance to effective recruitment policies but prospective employers must bear in mind that they are expected to strike a balance between their need for information and an applicant's right to respect for their private life. The spirit of the PDPA is also that it requires openness in respect of the data collected and the purposes for which it is collected.
After all, an individual's personal data, including his bank account details, credit card numbers, NRIC number, aren't just data. In the wrong hands they can wipe out a person's life savings, wreck their credit and cause financial ruin.
There are, unfortunately, no guidelines or regulations to provide guidance on the collection of personal data by employers in the recruitment stage. In the absence of such guidelines or regulations, it may be a good idea to adopt the guidelines issued by the Information Commissioner's Office of the United Kingdom. In brief, it is recommended that employers take the following steps:
- Ensure that the organisation is properly identified in advertisements as applicants have the right to know who they are applying to;
- Ensure that those involved in recruitment and selection are aware that data protection rules apply and that they must handle personal information in line with the PDPA; and
- Draft a PDPA Notice which complies with the requirements of the PDPA - ensure that important details, e.g. what personal data is to be collected, the purposes of collection and third party disclosures are stated in the PDPA Notice. This PDPA Notice is to be issued to all applicants and their consent must be obtained before their personal data is collected or processed.
Some companies have in place an online application form or receive unsolicited applications via email. This gives rise to complications because applicants who apply for jobs in this manner usually would not be issued with a PDPA Notice. The PDPA provides that the PDPA Notice is to be given as soon as practicable (section 7(2)). It is advisable for companies to immediately issue a PDPA Notice to the applicant and request the applicant to consent to the processing of his personal data, failing which his application cannot be processed and the company would be obliged to destroy the data received.
Alternatively, a web link can be inserted together with the online job application form to state that by providing his personal details, the applicant is deemed to have consented to the processing of his personal data as set out in the company's PDPA Notice.
WHAT SHOULD EMPLOYERS DO TO COMPLY WITH THE PDPA?
Employers are expected to take steps to ensure compliance with the provisions of the PDPA with regard to their employee's personal data. To this end, a carefully drafted PDPA Notice is to be issued to employees. It is advisable that a fresh PDPA Notice be issued to employees despite already issuing one during the recruitment stage. This is because the type of personal data collected, the purposes of collection of personal data, and the transfer of personal data would differ between employees and job applicants.
In dealing with employees, the PDPA Notice must also be broad enough to cover circumstances which might not seem probable at that time, for example to include clauses on transfer of personal data to group companies or affiliate companies although such companies may not exist at that time. Another example is to allow for the transfer of personal data to potential buyers in cases of a change of ownership of the company.
It is a good idea to follow the non-exhaustive list below in dealing with employee personal data:
- Carry out scheduled audits on all personal data in the company's possession to determine the data which is essential and discard or destroy all non-essential data;
- Designate a mode of contact and contact person whom employees can contact to access or correct their personal data and inform all employees of the same;
- Establish operating procedures to deal with inquiries, complaints, and access and correction requests;
- Establish retention periods for personal data and destroy personal data after expiry of the same;
- Refrain from collecting data unnecessarily from employees; and
- Provide awareness and training for all personnel in the company, especially those responsible for processing personal data.
Particular care must be exercised when dealing with sensitive personal data. Sensitive personal data refers to personal data in respect of the physical or mental health or condition of a data subject, his political opinions, his religious beliefs or other beliefs of a similar nature, or the commission or alleged commission by him of any offence (section 4).
The employer may process sensitive personal data only if necessary and must obtain explicit consent before processing the same. It must be noted that in this context, "processing" of personal data includes the collecting, using, storing or disclosing of such data.
Any consent given by the employee must be capable of being recorded and must be maintained properly by the employer. If consent is sought in a manner which is also used for some other purposes, the consent for use of personal data must be prominently presented.
CAN EMPLOYERS MONITOR THEIR EMPLOYEES WHILE AT WORK?
The short answer is also "Yes".
However, there are guidelines to follow in striking the balance between the need to ensure security of workplace and the employee's right to privacy. The PDP Department has issued a Proposal Paper No. 5/2014, namely the "Guide on The Management of CCTV Under Personal Data Protection Act (PDPA) 2010" ("CCTV Guide") to deal with queries in this respect.
This is pertinent as personal data under the PDPA has been defined as "... any information ... that relates directly or indirectly to a data subject, who is identified or identifiable from that information or from that and other information in the possession of a data user ... " This definition is wide enough to include a person's image captured under CCTV surveillance.
Although the CCTV Guide has yet to be enforced, it is advisable that an employer who installs CCTVs at the work place display a notice at the entrance to the CCTV surveillance zone that is visible to employees and visitors to inform them of the CCTV operation and the purposes for installation.
DEALING WITH ACCESS REQUESTS
One of the principles set out in the PDPA is the access principle (section 12). An employee, being a data subject, has the right to make a written request for access to his personal data and to correct them if any of the data is found to be inaccurate, incomplete, misleading or not up-to-date.
There are strict timelines which the employer must observe in dealing with data access requests. The employer must comply with the data access request within 21 days from receipt of such request. If the employer is unable to comply with the request for access, the employer must give notice to the employee detailing the reasons why compliance is not possible, and in any event, to comply within 14 days from the expiry of the initial 21 days.
The employer should make the correction and supply the employee with a copy of the data that has been corrected. There are circumstances in which the law permits the employer to refuse such request (section 36). Although the employer may charge a fee for giving access to personal data, such fee is regulated by the First Schedule of the Personal Data Protection (Fees) Regulations 2013, and range from RM2 to RM30.
Although the Employment Guideline has yet to come into force, it is clear that the PDP Department takes the view that the personal data of employees fall within the ambit of the PDPA. Accordingly, employers would be well advised to handle their employees' personal data with the same degree of care as they would with personal data of their customers, suppliers and other parties.
Originally appeared in Skrine's Legal Insights Newsletter, Issue 1/2015, March 2015.
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.