GDPR (EU data protection) from an HR perspective

The GDPR will replace the mixed blend of 28 different EU Member States’ laws with a single, unifying data protection law, which should lead to significantly greater data protection harmonisation throughout the EU.   Its main objectives are threefold:

1. The GDPR increases the rights for individuals.
2. It strengthens the obligations for companies.
3. The GDPR dramatically increases fines in case of non-compliance, up to €20m(£17m) – or up to 4% of total
worldwide annual turnover.

What important changes should be on your HR team’s radar?

1             Consent – Under GDPR an employee’s consent remains a legitimate basis for processing his or her personal data. However, such consent must be “freely given, specific, informed and unambiguous” and clearly “distinguishable” Further it is important that the employee is able to withdraw their consent as easily as they gave it in the first place. In light of the clear stipulations around the form that the employee’s consent must take, it is highly unlikely that blanket data protection consent clauses in contracts of employment and policies will suffice.

2            Subject Access Requests – The right of employees to request information about the personal data processed by the employer remains broadly the same. However, under GDPR the starting position will be that the employer must respond to a request without undue delay. The current 40 days will be replaced by 30 days. The £10 fee some companies levy for making the request will be abolished.

3             New (and enhanced) Rights – GDPR introduces some new employee rights as well as enhancing existing ones. For example, employees will have a new data portability right which will allow them to request that certain personal data is transferred directly to a third party. Further, employees will be armed with a suite of so-called “delete it, freeze it, correct it rights” which are aimed at giving them more control ( in certain circumstances) over how their personal data is processed.

4              Data Breach Notification – In the UK employers must notify personal data breaches to the Information Commissioner’s Office (ICO) with 72 hours of becoming aware of it.  The term ‘personal data breach’ covers a plethora of common workplace mistakes such as a laptop or file left on a train or an e-mail sent to an incorrect address. It is important to remind employees that even apparently minor incidents must be reported internally if data has been lost or compromised.

5             Routine CRB Checks – Enhanced DBS checks will still be permitted, however if employers adopt a routine policy of conducting DBS checks on all employees regardless of role and whether or not there is an English legal requirement to that effect, this may be unlawful under the GDPR.  Although standard and enhanced DBS (Disclosure and Barring Service) checks will still be permitted under GDPR, employers (as it currently stands) will not be able to conduct routine basic DBS checks on all employees (unless their role requires them to be security cleared).

GDPR has already started to appear in CJEU’s (Court of Justice European Union) soft case law (AG Opinion in Manni)
The recent judgment of the CJEU in Case C-398/15 Manni (9 March 2017) brings a couple of significant points to the EU data protection case law:

• The court clarifies that an individual seeking to limit the access to his/her personal data published in a Companies Register does not have the right to obtain erasure of that data, not even after his/her company ceased to exist;
• The court clarifies that the individual has the right to object to the processing of that data, based on his/her particular circumstances and on justified grounds.

Organisations should be checking that all their HR staff are fully engaged on GDPR to ensure there is a comprehensive grasp of the responsibilities and actions required ahead of implementation.  How ready is your HR department?   Let us know.

 

 

C Level Execs Reveal UK Business Still Not Prepared for GDPR

Trend Micro’s recently published survey has revealed a worrying lack of recognition that GDPR is going to seriously impact UK business if left unmanaged.  The results revealed a lax attitude about the severity of what is around the corner if data protection is not diligently overseen for compliance to ensure that employees, directors and decision makers all use data correctly.  The survey stats revealed the following:

•    Senior execs shunned GDPR responsibility in 57% of businesses.
•    Only 21% of businesses surveyed currently have a senior executive involved in the GDPR process.
•    66% were dismissive about the amount they could be fined.
•    42% of businesses do not know that email marketing databases contain PII.

•    In an example given, businesses were very uncertain as to who was accountable for the loss of EU data by a US service provider – with only 14% correctly identifying it is the responsibility of both parties.

•    Businesses were broadly found to lack the expertise to combat threat:

o   Only 34% have implemented advanced capabilities to detect intruders
o   Only 33% have invested in data leak prevention
o   Only 31% have employed encryption technologies

JP Norman, Amicus ITS Director of Technology, Security & Governance urged a proactive response without delay for anyone not already taking steps.  “Any organisation that does not recognise the importance of GDPR compliance and data protection responsibility needs to wake up fast.  A data breach after next May will no longer result in the organisation facing a slap on the wrist, some reputational damage and a manageable fine.  We have worked closely with the ICO and recommend their 12 step guide as a starting point for review.  Whatever challenges businesses think we may face through Brexit, GDPR has the potential to wipe businesses off the map entirely.  For the public sector, where the purse is controlled by Government and ringfenced locally, this will become even more damaging – personally, financially and politically.  However, whereas the cap is currently £500,000 till May 2018, this corporate penalty will rise to up to 4% of global turnover or a €20 million fine plus the potential of criminal prosecution thereafter.  I would urge all organisations who have not begun their information audit to start now”.