With the implementation of the General Data Protection Regulation (GDPR) fast approaching, businesses must reassess their data handling practices. Employers, in particular, need to evaluate their readiness and address potential compliance risks. Given that HR departments manage vast amounts of employee data from recruitment to retirement, a proactive approach is essential. The GDPR introduces stricter data processing requirements, offering HR professionals a significant opportunity to lead compliance efforts within their organizations.
Legal Grounds for Processing Employee Data Under GDPR.
GDPR outlines five lawful bases for processing employee data:
1. Consent.
Traditionally, employers have relied on employee consent through contracts, NDAs, or separate consent forms. However, GDPR imposes stricter criteria, making consent a less reliable basis for processing data. Valid consent must:
- Be freely given, specific and informed.
- Require a clear affirmative action from the employee.
- Be presented separately from other terms and in simple, accessible language.
- Allow employees to withdraw consent as easily as they gave it.
Due to the power imbalance between employers and employees, GDPR compliance experts caution against relying solely on consent, as employees can revoke it at any time.
2. Performance of a Contract.
Employers may process certain personal data when necessary to fulfill contractual obligations. For example, collecting employees’ bank details is essential for salary payments and fulfilling employment terms.
3. Compliance with Legal Obligations.
Businesses must adhere to various legal obligations that require data processing. These include maintaining records for statutory sick pay, tracking leave entitlements, and complying with health and safety laws.
4. Legitimate Interests of the Employer.
Employers can process employee data if it serves a legitimate business interest and does not override the employee’s privacy rights. Examples include:
- Tracking employees via GPS in specific industries.
- Monitoring office entry and exit times for security purposes.
However, businesses must carefully balance their interests against employees’ rights. The more sensitive the data or intrusive the processing, the greater the burden on employers to justify their legitimate interest.
5. Processing Special Category and Criminal Records Data.
GDPR imposes strict limitations on processing sensitive employee data, such as ethnic background, political beliefs, or trade union membership. Employers can only process this data under specific conditions, including:
- Obtaining explicit employee consent.
- Fulfilling employment law obligations.
- Establishing, exercising, or defending legal claims.
By understanding and applying these legal bases appropriately, employers can ensure compliance while safeguarding employee rights under GDPR.
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