Does HR data processing require registration under data protection laws?
Data protection laws sometimes include conformity assessments, which help to ensure businesses follow regulations. Requirements can include registration before the Data Protection Authority and random audits. The General Data Protection Regulation (GDPR), which became effective on May 25, 2018, has helped make the requirements within the European Economic Area more uniform. That said, each Data Protection Authority remains independent and can create their own conformity assessments.
While the United Kingdom is transitioning out of the European Union, the GDPR will continue to apply through December 2020. The UK passed the Data Protection Act 2018 (“Act”) to implement the GDPR and to allow for continued application of the GDPR once the UK leaves the EU. The Act largely mirrors the GDPR and will continue in full force beyond the transition period.
The GDPR is oriented on “privacy by design” and “privacy by default.” Controllers (employers) and Processors (subcontractors) must implement all technical and organizational measures necessary to ensure the protection of personal data. In practical terms, the processing of personal data in every instance should be accompanied with the privacy concern in order to limit the amount of data processed from the outset (so-called "minimization" principle). HR teams should think carefully before collecting any new piece of data. Two key considerations are the reasons for collecting the data and the potential consequences (risks) of maintaining and processing this data.
The consequence of this accountability principle is the reduction of required employee notifications, once controllers and processors conclude that processing the personal data does not constitute a risk to privacy. Prior to the GDPR going into effect, processing personal data was subject to authorization from the competent data protection authority. Going forward, the new procedure involves privacy impact assessments.
The GDPR has numbered a few new compliance requirements to demonstrate accountability, such as:
- maintaining a register of treatments implemented
- the notification of security breaches (to the authorities and persons concerned)
- adherence to codes of conduct
- the DPO (Data Protection Officer)
- Privacy Impact Assessments (PIAs)
While registering with data protection authorities is no longer required under the GDPR, the UK instituted mandatory fees for some data controllers. Note that staff administration is exempt from this requirement but there are limits to this exception (ex. it doesn’t apply to applicant data and may not apply to certain cross-border transfers). Most employers choose to pay the small fee to the Information Commissioner’s Office.
Additional information can be found below:
HR Best Practices: Build in privacy considerations and risk assessments for all employee and candidate data collection processes. Follow the principles of “privacy by design” and “privacy by default.” The UK’s Information Commissioner’s Office (ICO’s) website provides a range of training materials including practical toolkits and training videos.