The GDPR which will have direct effect in Ireland from 25th May 2018 is one of the most significant developments in data protection law in decades. While data protection within the employment sphere is nothing new, there are changes in the GDPR which will have an impact from an employment law perspective which all employers should familiarise themselves with.
Breaches of GDPR will lead to significant consequences for employers, including fines of up to €20 million or 4% of global annual turnover, whichever is greater.
In Ireland, the Data Protection Bill, 2018 was published on 30th January 2018 and the final text of the Act is still awaited. That said, the obligation on employers as data controllers will have immediate effect in May 2018 and GDPR should be on all employers' agenda now in order to achieve compliance by the 25th May deadline.
We have set out below ten key points employers need to be aware of from an employment law perspective:
- Changes to Subject Access Rights ("SAR")
Dealing with a subject access request from an individual will be a familiar task for HR practitioners who will be used to dealing with and responding to such requests. SAR's are often utilised by disgruntled employees as a mechanism to obtain data in advance of litigation, which they might not otherwise have had sight of.
Under the GDPR, data subjects will no longer be liable to pay a fee unless the request is "manifestly unfounded or excessive in particular because of its repetitive character". The current statutory timeframe of 40 days to comply with the request is replaced with an obligation to comply "without undue delay" and at the latest within one month of the request.
Employers will be familiar with the administrative burden responding to a SAR entails and the reduced time frame to respond will mean that employers will need to ensure that they have policies and procedures in place in order to deal with a data access request promptly upon its receipt in order to ensure that they can comply with the one month period. There is provision in GDPR for an extension of the timeframe by a further two months in circumstances where the request is particularly complex. The employee must be notified of the extension within one month of receipt of the subject access request and a reason for the delay.
Under the current Data Protection Acts, 1988 and 2003 consent must be unambiguous, informed and freely given. Under GDPR, consent must also be unambiguous and the extent to which consent can be relied upon in the employment context to justify the processing of personal data is doubtful. Recent Article 29 Working Party Guidance on data processing in the workplace has confirmed that due to the unequal bargaining position that an employee is in by virtue of the employment relationship means that their consent may not be valid.
Employers will need to review their employment contracts and privacy notices as outlined below in order to ensure that they have a legitimate basis in order to process employees' data other than relying on consent.
- Privacy Notices and Policies
Article 13 of the GDPR makes it clear that processing of employees' personal data requires employers to provide certain information to employees in advance of their personal data being collected. This notification requirement existed under the current data protection regime, however, Article 13 sets out significantly more detailed requirements and also requires that information must be provided in concise, transparent, easily accessible plain language.
The information which must be furnished includes:
- Identity and contact details of the data controller.
- Contact details of the Data Protection Officer where applicable.
- What information does the Company collect about the individual.
- How will the individual's information be used.
- What is the Company's legal basis for processing personal data.
- Who receives their information.
- Any transfers to third countries and the safeguards in place.
- How long will information be held. (Please see a previous article on this topic here).
- What are the individual's rights.
- The security of the information; and
- How a complaint is made.
Privacy policies and notices will need to be updated in order to ensure compliance with the GDPR.
- Employee's Rights
Under the GDPR, employees have significantly greater rights regarding their personal data including their right to port their data to rectify, erase and restrict their data, to object to processing, as well as the right to withdraw consent at any time if processing is based on consent.
Individuals also have a new right to compensation for non-material damage, in other words damages for the distress or hurt caused by unlawful processing of their data. Employers will need to show they have procedures in place to defend against any such litigation.
- Security of Information – Privacy by Design and Default
GDPR places new requirements on employers to ensure that personal data is kept safe and secure and that appropriate organisational and technical measures are put in place having regard to the "state of the art". Privacy will need to be at the forefront of any new processes or systems in order that the rights and freedoms of the individual is taken into account.
- Demonstration of Compliance
There has always been a duty to comply with the Data Protection Acts, however, under GDPR an employer has to be able to demonstrate this compliance. In practice what this means is that an employer will need to have Data Protection Policies in place to demonstrate the processing of personal data is performed in compliance with the GDPR and must be able to show that this policy has been implemented by way of staff training, audits or other checks.
- Data Protection Officers
The requirement to appoint a Data Protection Officer is mandatory under GDPR for employers in three instances, namely where:
- The processing is carried out by a public authority or body except for Courts acting in their judicial capacity;
- The core activities of the controller or the processor consist of regular and systematic monitoring of data subjects on a large scale; or
- The core activities of the controller or the processor consist of processing on a large scale special categories of data, personal data relating to criminal convictions.
Even when the GDPR does not specifically require the appointment of a DPO, some organisations may appoint a DPO on a voluntary basis or a data protection champion in order to centralise responsibilities for the new compliance obligations under GDPR.
- Data Breach Reporting
Given the significant increase in data breaches in the last number of years, it is not surprising that the GDPR focuses on preventative and reactive requirements in respect of data breaches. In particular, where data breach occurs, and that breach is likely to result in a risk to the rights and freedoms of individuals, employers are obliged to notify the Data Protection Commissioner's Office of the breach after becoming aware of the breach without undue delay and within 72 hours where feasible. The data controller or employer must also give consideration to notifying the data subjects of the personal data breach where the breach is likely to result in a high risk to their rights and freedoms without undue delay.
- Data Processing Agreements
GDPR regulates data processes for the first time and places specific obligations to ensure that controllers ensure when they are appointing a data processor, a written Data Processing Agreement is put in place meeting the requirements of the GDPR. Employers need to review whether or not they are engaging any data processors for the purpose of processing employee data, such as outsourced payroll and ensure that a GDPR compliant processing agreement is in place.
- Questions to Ask
As a starting point employers should look at what data they have, where it is and why they have it in order to identify gaps against GDPR compliance.
Ten questions all employers should ask include:
- What data does the employer hold?
- Do people know the data is being collected and why?
- Is all the data relevant?
- Where is it stored and how safe is it?
- Who has access to it?
- Where did the business get the information?
- How is the employer managing the risk of data sharing?
- What kind of checks does the business have in place?
- Can the data be copied and stored elsewhere?
- Have data subject preferences re their data been accounted for?
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.