UK: Employment & GDPR: One Year On

It is one year into the GDPR regime but what are the next steps for organisations? We discuss the developments over the last year, the lessons to be learned and what priorities employers should concentrate on next.

To listen to the podcast click here

Siobhan Bishop: Hello and welcome to our Podcast on GDPR.  We are discussing where we are now, one year on from the General Data Protection Regulation being introduced, where the key risks lie and what employers should be focusing on for the next 12 months. 

I am Siobhan Bishop, a Principal Associate in the Employment, Labour & Equalities Team here at Gowling WLG and I am joined by Alice Loughney, an Associate in our Team. 

It is one year into the GDPR regime and for the purposes of this Podcast we are working on the basis that employers have already completed the most basic steps, so done the relevant audits and have put in place privacy notices and policies and what we are going to look at now is what developments there have been over the last year and where employers should concentrate their efforts for the coming year.  So Alice, let's look back first on what the Regulators across Europe have been focusing on so far and what lessons these lead to for employers and how they can learn from this.

Alice Loughney: A lot of the activity so far both EU-wide and in the UK has not been directly related to employment data and many of the cases that have started since GDPR came into force is still working their way through the tracks.

I think from what we do know, we can draw out three key themes for employers in the coming year.  This is based on where the focus has been so far and also where the ICO (the UK regulator) has said its strategic priorities are going to be for the year to come.  The three key themes for employers to look at the in the next year are:

  1. Handling personal data breaches;
  2. Responding to data subject access requests or DSARs; and
  3. Automated decision making

Siobhan: Thanks Alice.  So looking first at one of those key priority areas, handling personal data breaches, what developments do you see there? 

Alice: One of the main challenges for employers is that under GDPR you have to act really quickly in the event of a data breach.  The obligation is to report any notifiable breaches as soon as possible and within 72 hours. Even if you don't have all of the facts, you still have to go to the regulator as soon as you know that something has happened.  If that is not possible, for example if someone sat on a breach or you have not become aware of it under after 72 hours have passed, you need to be prepared to explain yourself to the regulator. So it is really important to make sure staff understand the urgency and recognise a breach when it happens. 

The ICO has recently published that there has been a huge increase in the number of notification of breaches since GPPR came in. The regulator has said that it sees that as positive as it shows employers engaging with their obligations, but it has also said that many of those breaches probably were not notifiable and it recognises that organisations need some more guidance on when breaches should be notified to the regulator.

So look out for that guidance in the coming year, but in the meantime I think I would recommend erring on the side of caution:  if there has been a breach, it is probably best to assume it is notifiable to the Regulator.

Of course in this area, you also need to watch out for civil liability because when there has been a serious data breach, individuals who have been affected may bring claims against you as an organisation through the Courts as well as any regulatory action that you may face.

Siobhan: One of the key messages here is to have in place robust procedures that allow employers to act confidently and quickly in response to any potential breach.

Alice: Absolutely.

Siobhan: OK so the next key area that we are looking at is data subject access requests. What are the key messages from this area?

Alice: Data subject access requests are not anything new under GDPR.  Most HR teams will be very used to responding to these, but I think since GDPR came in, we have certainly seen a huge increase in the number of requests coming in.  They are pretty much a matter of course in employment litigation now and also as part of exit negotiations and sometimes during particularly messy grievances. 

One of the key changes under GDPR is that data subjects are entitled to ask not just for a copy of their data but also other information about how it is processed: for example, who has access to it, retention periods. We are seeing more and more subject data requests containing requests for that information as a matter of course in the initial letter that you receive asking for data,  Cynically perhaps that might be to make it even more time consuming for an employer to respond. If the request is made as part of negotiations, it maybe puts more pressure on the employer to reach a deal that is favourable to the employee.

Most of that additional information should be contained in your privacy notices so if you spent some time making sure that they are thorough and GDPR compliant, you can save yourself some time in re-inventing the wheel every time you get a DSAR in, requesting that additional information.

Siobhan: And given the volume of data that is now held electronically, would you recommend employers use automated or electronic solutions to respond to the increasing number of DSARs?

Alice: Yes I think if the organisation has the resources, as more and more data is stored electronically, it is likely to become a necessity to have at least some electronic assistance in finding and sifting the data.

One development to watch out for over the coming year is an investigation by the Austrian data protection regulator (their equivalent of the ICO) It  is looking into eight companies who have introduced electronic solutions for responding to DSARs. Mostly these are big householdname technology companies such as streaming services who presumably had considerable resources to invest when they put these solutions in place. The complaints were orchestrated by a privacy rights campaigning organisation called None of Your Business.  The allegation made by this organisation is that the electronic solutions put in place were deficient in different respects and none of them fully complied with their obligations under GDPR. For example many of them only provided data subjects with access to the raw data and not the other information which they were entitled to request, such as who the data is shared with or retention periods.

Siobhan: Thank you.  That is really interesting and we will see how that develops. 

We are looking forward now to what is coming down the tracks and also linked with one of the important areas, especially that you have just highlighted on artificial intelligence and the adoption of automated solutions.  How much progress and what developments are we seeing in that area?

Alice: The use of artificial intelligence sounds quite futuristic but it is becoming more and more prevalent in the HR world and I think particularly we are seeing this in recruitment.  The ICO has published that it is going to be focusing on artificial intelligence over the next year as one of its eight top strategic priorities, so it is vital to make that you are comfortable that what you are doing or planning to do in this area stays on the right side of the law. 

Under GDPR, decisions which are taken solely on the basis of automated processing on the face of it are banned, unless you can bring yourself within one of the exemptions set out under GDPR if those decisions have a legal or other significant effect on an individual. I think almost all employment decisions will have such an effect. 

So an example of a decision which would be solely automated would be if you had, say, a piece of software which sifted through applications for a job and sifted out those with less than a certain number of years of experience.  On the other hand a decision which would involve a human review (and therefore not fall within these provisions) would be a process which sorted CVs into piles for a human reviewer to then look at and decide who to interview. 

Importantly, if you are carrying out automated decision making, even if you fall within an exemption, the individual who was subject to that decision can require a human review and, in almost all cases, you should also be carrying out a data protection privacy impact assessment.  That is something I would recommend more generally anyway whenever you are introducing a new process or considering something out of the ordinary that involves processing data, because it makes sure you have thought through the potential impact in a structured way and that you can evidence that you are compliant with GDPR.

Siobhan: Thanks Alice and another question focusing on the future is what is going to happen to GDPR in light of Brexit?

Alice: Well on "Brexit day", although GDPR is an EU Regulation, it does not mean you can rip up your privacy notices and stop complying. The data protection obligations contained in GDPR will be enshrined in UK law and the ICO has already said that the existing guidelines it has published will continue to apply. 

Where there is a bit more uncertainty through is the movement of data between the UK and other EEA countries.  In an employment context that is likely to be part of day to day working life if, for example, you have reporting lines which cross borders with EAA countries or you may have shared services or outsourced functions in another country.  In that case the steps that employers need to take to minimise the impact of Brexit on their day to day operations will depend on whether there is a deal and if so what is agreed.  So there is still quite a bit of uncertainty and I think a really important part of planning for Brexit is to make sure you know where employee data is currently crossing borders.

Siobhan: Many thanks Alice for those insights and especially the recommendations on what priorities employers should focus on in terms of complying with the GDPR in the coming year.

Read the original article on GowlingWLG.com

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
26 Sep 2019, Seminar, London, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

8 Oct 2019, Seminar, Birmingham, UK

Supporting the development of paralegals, trainees and lawyers of up to five years' PQE by providing valuable knowledge and guidance together with practical tips.

10 Oct 2019, Seminar, London, UK

Supporting the development of paralegals, trainees and lawyers of up to five years' PQE by providing valuable knowledge and guidance together with practical tips.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions