Protecting employee data underlies an employer’s duty of confidentiality and an employee’s fundamental right to privacy. This blog should assist employers and employees alike in understanding their respective rights and obligations by explaining the basics of the employee data protection laws applicable in the United Kingdom, as enacted primarily under the Data Protection Act 2018 and GDPR.
Overview of Data Protection Laws
Data Protection Act 2018
Background and Significance
This Act brought into effect the General Data Protection Regulation (GDPR) set by the European Union and replaced the Data Protection Act 1998. The Data Protection Act 2018 is an act of the British parliament that outlines the UK’s implementation of the GDPR principles and makes extra provisions to suit the UK where the GDPR does not. It safeguards people from any abuse of personal information. It ensures that personal data is safe while allowing various functionalities of the modern digital age.
Key Principles
The processing of personal data should be lawful, fair, transparent, practicable, proportionate, and justified in accordance with principles set out in the core provisions of the Data Protection Act 2018.
It should be for a specific lawful purpose; collected and processed in a way that is adequate, relevant, and limited to what is necessary for that specific purpose; accurate, and where necessary, kept up to date; not retained for longer than is necessary for the specified processing; and—this is the key, in my view—the personal data should be handled in a manner that ensures appropriate security: personal data should be protected against unauthorised or unlawful processing, accidental loss, destruction, or damage. In other words, the information should be stored securely and accessed only by authorised individuals. This source has been verified as an essay written by an undergraduate student.
General Data Protection Regulation (GDPR)
Introduction and Relevance to the UK
The GDPR represents legislation rolled out across the European Union in 2018 and was designed to harmonise the data protection laws across the bloc. Despite the UK’s departure from the EU, GDPR remains relevant in the UK through the instrument of the Data Protection Act 2018, which enshrines the EU regulation word-for-word into UK law. This has the effect of ensuring a symmetrical application of data protection law across the EU and the UK. Given its EU origins, the GDPR delivers a higher level of individual protections and clearer obligations for organisations than the previous Data Protection Act 1998.
Key Principles
Notably, among the core concepts of GDPR are the application of many of what we now call the Data Protection Act 2018’s principles: that data is processed in a lawful, fair, and transparent way; that it is collected for specific purposes; that it is limited to what is necessary for those purposes; that it is accurate; that it is kept no longer than necessary; that it is kept safe and secure; that it is not disclosed without appropriate authorization; and that organisations comply with this Act in an accountable manner (meaning, showing that they have taken the above steps with regard to the Act by keeping accurate and updated records of how they are doing all this).
Key Principles of Data Protection
Lawfulness, Fairness, and Transparency
Ensuring Lawful Processing
Under data protection law, personal data must be processed on one of the six lawful bases laid down in the law: consent, performance of contract, legal obligation, vital interests, public task, or legitimate interests. The organisation must identify and document the lawful basis for all processing of personal data.
Providing transparent information to employees
Transparency is another important element of the data processing approach. Employers should provide clear and accessible information to employees about what will be done with the data they furnish. According to EU data rules, this information is normally provided through privacy notices that explain the purposes of data collection, how they will be used, with whom they will be disclosed, and what rights employees have with respect to their data.
Purpose Limitation
Collecting data for specified, legitimate purposes
Purpose limitation means the purpose for which the data was collected is specified, explicit, and legitimate; that it is collected for that purpose and not for another that is incompatible with the stated purposes; and that it is not further processed in a way incompatible with the stated purposes. For example, an employer needs to say what it’s going to do with my data once collected (which must be legitimate). It can’t be used for something else later on (incompatible). It also can’t use that data in a way that would be incompatible with the specified purposes.
Restrictions on using data for new purposes
They must seek fresh consent from data subjects or demonstrate that the new purpose is sufficiently compatible with the original purpose to be considered part of the same processing operation. This limitation on secondary use retains continuity and prevents the misdirection of data subjects.
Data Minimization
Collecting only necessary data
Data minimization demands that the amount of data collected no longer be excessive now that the limited purposes are defined. It also exposes the data controller to unnecessary risk and raises the costs associated with data management and protection.
Regular review and deletion of unnecessary data
Organisations should continually check the data they hold and constantly delete data they no longer need. Retention schedules are your friend. You should have some written rules for keeping data, for how long you keep it, and the secure destruction date at which point it’s deleted.
Accuracy
Maintaining accurate and up-to-date data
Accuracy is a crucial part of good data protection practice. Organisations should take steps and use reasonable measures to keep personal data accurate and, where necessary, up-to-date. Inaccurate information might lead to wrong decisions and damage to data subjects.
Procedures for Correcting Inaccurate Data
The individual has the right to request that inaccurate or incomplete data be rectified. The organisation must have procedures in place to handle such requests quickly and efficiently, and the data must be kept up-to-date.
Storage Limitation
Retaining Data Only as Long as Necessary
Storage limitation prescribes that data about a person should not be retained for any longer than needed to achieve the purposes for which it was collected. Companies must set and maintain retention schedules that clarify how long different categories of data should be retained.
Implementing retention schedules
Retention schedules define a data’s lifecycle, prescribing when data should be retained and when it should be destroyed. They help ensure that organisations respect legal obligations and are not exposed to unnecessary risks by holding outdated data.
Integrity and confidentiality
Ensuring Data Security
Freedom from data breach. If someone wants to know something private about you, they should only be allowed to find it by using the same means through which you know about it. The organisation should have taken appropriate technical and organisational measures to ensure a level of security appropriate to the risks represented by the data processing. This could include encryption of personal data, measures to ensure the ongoing confidentiality, integrity, availability, and resilience of processing systems and services, and regular security audits.
Protecting Against Unauthorised Access and Breaches
Limiting unauthorised access to personal data requires strong security controls, including multi-factor authentication, regular system patching, and training employees about data protection protocols. In the event of a data breach, organisations must have incident-response procedures to help mitigate harm.
Accountability
Documenting compliance efforts
Accountability means that organisations must be able to show that they are complying with the data protection requirements—for example, that they have documented all their processing activities, kept records of the data protection impact assessments (DPIAs) that they have performed, and have clear policies and procedures in place relating to data processing.
Implementing Data Protection Policies and Training
Organisations must work to establish a comprehensive data protection policy that outlines their approach to GDPR and compliance. Staff must be trained regularly so that everyone is aware of the importance of maintaining personal data.
Employee Rights Under Data Protection Laws
Right to be Informed
Providing Privacy Notices
While employees have a right to know how personal data is collected, used, and stored, employers are required to provide privacy notices that explain such practices and provide clear communication in accessible formats.
Detailing Data Collection and Usage
Employees who read their privacy notices can expect to be told about the types of data collected, the purposes of such processing activities, how long the data will be retained, and with whom it will be shared. If the notifications are designed well, this information will enable workers to more effectively control their own monitored data.
Right of Access
Employees’ Right to Access Their Data
This gives workers the right to know and check what personal data their employer is holding about them.
Procedures for Handling Access Requests
Organisations should also establish clear procedures (e.g., verifying the requester’s identity and locating and providing the information within the statutory period, in this case, a month).
Right to Rectification
Correcting Inaccurate or Incomplete Data
If provided by an employer for employment, employees have the right to request corrections to any inaccurate or incomplete information contained therein. If any inaccuracies are found, employers must promptly make the appropriate corrections so that persistent errors do not endanger the overall accuracy and reliability of the provided data.
Processes for Requesting Rectification
Organisations need processes for managing these requests and checks on the accuracy of the corrected information so that records can be updated. Staff should also be made aware of how to request corrections.
Right to Erasure
Conditions for Data Deletion
Subjects may lodge with the controller a request to have the personal data concerning them erased if the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed or if the subject withdraws consent on which the processing is based. This has been dubbed the ‘right to be forgotten’.
Procedures for Handling Erasure Requests
Organisations must have measures in place to respond to erasure requests, such as verifying the request, confirming that the criteria for deletion are met, notifying previous recipients of the erasure, and deleting the relevant data. The right to erasure should be communicated to employees, and procedures should be outlined for requesting it.
Right to Restrict Processing
Conditions for Restricting Data Processing
Pursuant to it, employees can ask for processing restrictions under specific circumstances—e.g., when they think the data is inaccurate or when they object to processing (for reasons discussed below). If the restriction is granted, data can be saved but not used until the issue is resolved.
Procedures for Handling Restriction Requests
Organisations need to implement procedures for handling requests to restrict data processing, such as confirming the request, carrying out the restriction, and informing the employee of the steps taken.
Right to Data Portability
Transferring Data to Another Organisation
One right is called ‘the right to data portability’: a right for someone employed by an organisation to request that the employer provide their data to the data subject or another organisation in a structured, commonly used, and machine-readable format that allows the transferred data to be stored. This right enables greater reuse of the same data across different services.
Ensuring data portability requests are handled properly
In addition, standards should exist to assist organisations in handling requests for data portability, such as a procedure to verify the requestor’s identity and secure the data transfer. Employees should be informed about their rights relating to data portability and the procedures for exercising these rights.
Right to Object
Conditions for Objecting to Data Processing
Employees can, in certain circumstances, object to the use of their personal data, including either generally (based on legislation or a legitimate interest condition) or when it is used for direct marketing purposes. Once a request is made, the employer can continue to process the personal data only in certain circumstances, including when they can prove that they have compelling legitimate grounds to do so.
Procedures for Handling Objections
There should be clearly defined procedures for objections to data processing, including an assessment of the legitimacy of the objection. If the organisation decides the objection is legitimate, it should cease data processing. Employees should be made aware that they have the right to object and should know what procedure they should follow.
Rights Related to Automated Decision Making and Profiling
Safeguards Against Harmful Automated Decisions
Employees should be protected against automated processing having a legal effect or a similarly significant effect on them, especially in relation to automated recruitment processes. Employers should set up safeguards and provide for humans to intervene against the damage that might arise from automated decisions.
Procedures for Handling Related Requests
Organisations should also ‘set out the procedures for requests from individuals concerning automated individual decision-making, including profiling, and, at least in the case of the first such request, provide meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the individual’, as well as ‘the right to obtain human intervention, to express his or her point of view, to challenge the decision, and to request that a human reconsider the decision’.
Employer Obligations and Responsibilities
Data Protection Policies and Procedures
Developing and Implementing Policies
Employers should lay down policies to govern the way personal data is collected, processed, stored, and deleted. This reduces the employment risks associated with data protection and helps with compliance.
Regularly reviewing and updating policies
Data protection policies should be reviewed and updated regularly in accordance with changes in the law, the technical environment, and organisational practice. When a review indicates changes to data or processing, the formal review and approval process should start again. Regular review helps organisations keep abreast of developments or changes.
Data Protection Officer (DPO)
Appointing a DPO When Required
Organisations must designate a DPO if they have core activities in processing operations that require regular and systematic monitoring of data subjects on a large scale or the processing of sensitive personal data on a large scale. The precise responsibilities of the DPO depend on which of these categories the organisation falls under. Still, overseas, the role is generally understood as the enforcement mechanism that ensures organisations are in compliance with data protection legislation and that they have a point of contact for questions regarding their personal data and legal requirements from local regulatory authorities.
Roles and responsibilities of the DPO
The DPO is responsible for advising and monitoring the organisation regarding its data protection obligations, carrying out data protection impact assessments (DPIAs), training staff on data protection issues, and acting as the point of contact with the relevant national supervisory authority (the Information Commissioner’s Office, or ICO, in the UK in this example).
Data Processing Agreements
Ensuring agreements with third-party processors
Employers dealing with third-party processors (e.g., for payroll services) must have data processing agreements that set out each party’s responsibilities and liabilities so that personal data is processed in accordance with data protection law and with adequate security.
Monitoring Third-Party Compliance
There is also a need to check that the third-party processor is complying with the terms of the DPA and applicable data protection law routinely. At least annual audits of how a third-party processor handles data should be conducted, as well as reviews for compliance with data protection law. If there are problems with the third-party processor, these need to be addressed in a timely fashion.
Training and Awareness
Regular Data Protection Training for Employees
Data protection training should be mandatory every year to make employees aware of their obligations and the need to protect personal data. It should cover data protection principles, the organisation’s policies and procedures around reporting breaches, and data subject requests.
Promoting Awareness of Data Protection Issues
It is essential to create a culture of compliance through awareness about data protection issues. This can be done by regularly communicating, conducting workshops and training to keep data protection in the minds of employees, and updating them on recent developments in data protection.
Data Security Measures
Implementing Technical and Organisational Measures
Technical and organisational measures: Employers can only collect the data they actually need, and they must keep it safe. That means encrypting it, restricting who can access it, and storing it securely. Employers should also make sure they’re running updated software and systems, which will help protect against vulnerabilities and hackers.
Regular security audits and assessments
Regular security audits and assessments can help identify threats and vulnerabilities and address issues related to data protection measures. This would ensure that the organisation not only keeps up with the current changes in the law but also complies with other vital data protection standards and industry best practices.
Breach Notification
Procedures for Detecting and Reporting Breaches
Employers should have procedures in place for detecting and reporting breaches where data is accessed without authorization. For example, this could be achieved through a system of monitoring for suspicious activity, retaining records of when data is accessed, and conducting regular security checks on data storage. The sooner a breach is detected, the less damage can be caused, and regulatory obligations can be met.
Notification Requirements to ICO and Affected Individuals
Organisations will also be required to notify the ICO of a data breach ‘without undue delay and, where feasible, not later than 72 hours after having become aware of it’. Individuals must also be informed if the breach poses a high risk to their rights and freedoms. Set procedures ensure that they can respond in a timely and transparent way.
Consequences of Non-Compliance
Regulatory Penalties
Fines and sanctions by the ICO
Failure to comply with the data protection laws will result in punitive fines and sanctions from the ICO. Penalties of up to £17.5 million or 4 percent of global annual turnover, whichever is higher, will be imposed.
Examples of Enforcement Actions
By way of reminder to companies not toeing the line, the ICO has issued enforcement action notices against a number of organisations for failures to comply with data protection law, ranging from a failure to process personal data in accordance with the First Data Principles to the processing of personal data without lawful authority and breaches of data subject rights.
Legal Consequences
Potential Lawsuits and Compensation Claims
Failure to comply can result in legal action in the form of lawsuits and compensation claims by injured parties. Employees whose data rights have been violated may claim damages for financial loss and distress, for instance. Companies must be prepared to deal with this legal fallout.
Case Studies of Non-Compliance Issues
Third, considering these case studies of non-compliance can inform future data controllers about the risks and consequences of non-compliance; they showcase the potential for failure and why robust data protection is crucial.
Reputational Damage
Impact on Employer Reputation
Data breaches and general non-compliance damage an organisation’s reputation. The possible loss of employee, customer, or stakeholder trust can be a blow that keeps a company away from business and profitability for years to come. Protecting that reputation cannot be afforded without protecting data.
Examples of Reputational Damage from Data Breaches
In the high-profile data breaches of late, which continue to make readers of newspapers quake, the companies involved not only suffered substantial harm to their reputations, such as a fast and large exodus of consumers and a defeat at the hands of the press, but could have also been spared a good deal of damage if they had proactively rebuilt trust in their data protection and communicated more transparently if and when it occurred.
Best Practices for Ensuring Compliance
Conducting regular audits
Importance of Data Protection Audits
Performing periodic data protection audits or impact assessments ensures that any identified compliance gaps are monitored and resolved. Integrating data protection practices, not only as a tool but also as part of an organisation’s functioning, is a crucial step in ensuring overall data protection efficiency.
Steps for Conducting Effective Audits
The conduct of effective audits requires the examination of data processing activities, the verification of security measures, and the review of an organisation’s compliance with the relevant data protection laws. Cooperation with internal and external auditors can offer a solid evaluation of a company’s data protection measures.
Implementing Data Protection Impact Assessments (DPIAs)
Purpose and Benefits of DPIAs
A DPIA is a tool that all organisations can use to assess the risks posed to the privacy of data subjects by data processing activities, identify appropriate data protection safeguards, mitigate risks, and ensure that lightweight yet appropriate data protection measures are in place before a new project or process goes ahead. DPIAs are mandatory for certain types of high-risk processing.
When and How to Conduct DPIAs
DPIAs should be prepared for all new and existing data processing activities, systems, and technologies that are likely to result in high risks to privacy (such as the first use of a new technology or system). This includes assessing the likelihood and severity of the harms, developing mitigation measures, and conducting periodic reviews to verify compliance.
Ensuring Ongoing Training and Education
Regular Training Programmes for Employees
Reguralty employees’ training and education programmes on data protection are organised and updated, ensuring that they have unanimous knowledge of DP laws and suggested articles and environments. Training sessions, workshops, or e-learning modules are held periodically to reinforce employees’ role in data protection.
Keeping up-to-date with Data Protection Developments
Data protection laws and best practices change over time. Organisations, therefore, need to keep abreast of relevant changes. Subscribing to industry newsletters, attending conferences, and engaging with data protection professionals are some ways that can help organisations keep their knowledge current.
Engaging with Data Protection Professionals
Consulting with Experts for Advice and Support
Working with data protection professionals is not only a useful source of advice and support for compliance efforts, but the experts are also able to take something organisational management academics call ‘slack’. Data protection consultants might be able to tackle particularly complex and difficult tasks. They could help organisations audit for compliance, train staff, or deliver expertise in technical areas—that is, they are able to provide organisational ‘slack”.
Benefits of Professional Guidance
Data protection practitioners help an organisation prepare and comply with rules on the protection of personal data. They also help by reducing their employer’s compliance risks and responding to incidents such as data breaches. Data protection professionals can bring a wide range of knowledge and experience related to organisations’ use of personal data. They can help ensure that the organisation’s data protection measures are adequate according to applicable law and best industry standards.
Conclusion
It is vital for employers and employees to be aware of and comply with data protection laws regarding employee data. Such compliance protects personal data, prevents suspicion, and helps avoid potential liability and damage to reputation. Employers and employees should follow developments on data protection and seek proper professional advice to tackle complex issues and have solid data protection practices in place.