Data privacy laws have become more prominent in recent years. As the amount of personal information available online has grown substantially, there has been an enhanced focus on the processing of personal data, as well as the enforcement of such laws.
Before talking about the data privacy laws and regulations regarding the United Kingdom (UK), it is important to note that the country has left the European Union (EU) and is in a transition period through December 2020. The EU’s General Data Protection Regulation (GDPR) will continue to apply during this transition period.
The United Kingdom implemented the European Union’s General Data Protection Regulation through the Data Protection Act 2018. The UK Act is designed to help the country meets its obligations while a member of the EU as well as to enable the UK to share personal data with other nations after exiting. While there are a few differences, the data protection requirements are largely the same as the requirements in the GDPR. The Act will continue, in full force, beyond the Brexit transition period.
Firstly, it is important to understand who is the “data controller” under the EU legislative framework. An organization is a data controller when it determines the purposes and manner in which personal data is processed. “Personal data” refers to “any information relating to an identified or identifiable natural person.” That person is considered a data subject under the GDPR and may “be identified, directly or indirectly…by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.”
Clearly, a lot of employee-related information collected by employers qualifies as personal data, thereby subjecting European employers to EU data privacy regulations. The employer collecting the employee-related data is the data controller, and every HR solution adopted might be qualified as a sub-processing activity.
Regardless of whether an employer utilizes subcontractors to process information, data management processing principles will still need to be followed. This is because the “processing of personal data” is construed broadly and includes physical and automated procedures such as: collecting, recording, organizing, structuring, storing, adapting/altering, retrieving, consulting, using, disclosing by transmission, disseminating, making available, aligning/combining, restricting and erasing/destructing.
Therefore, as controllers of employee personal data collected in the employment context, employers must comply with the following personal data processing principles:
Employers should be able to provide a documented rationale for processing each piece of personal data. Processing can be legally justified if the:
If the employee data qualifies as sensitive personal data, then a narrower set of conditions applies. For example, one such condition is that a data subject has given explicit consent to the processing of his/her sensitive personal data. “Sensitive personal data” is the personal data consisting of information about the data subject’s racial or ethnic origin; political opinions; religious beliefs or beliefs of a similar nature; trade union membership; physical or mental health or condition; or sexual life.
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The authority responsible for enforcement of data privacy law and regulations in the UK is the:
Information Commissioner’s Office