Understanding GDPR and Its Application in Employment
Data protection is a critical aspect of employment law, ensuring that employee information is handled securely and transparently. The UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 establish a comprehensive framework for managing personal data within workplaces. Employers must navigate these regulations carefully to remain compliant while maintaining operational efficiency.
The UK GDPR provides individuals with greater control over their personal data while ensuring that organizations implement responsible data processing practices. HR professionals and employers must understand its key principles to comply with legal requirements and protect employee rights.
Key principles of GDPR
GDPR is built on several core principles that dictate how personal data should be managed:
Lawfulness, Fairness, and Transparency – Employers must have a lawful reason for collecting and processing employee data and clearly communicate how it will be used.
Purpose Limitation – Data should only be collected for specific, legitimate purposes and should not be repurposed without consent.
Data Minimization – Employers should only collect data that is strictly necessary for the intended purpose.
Accuracy – Employee data must be kept up-to-date, and incorrect records should be promptly corrected.
Storage Limitation – Data should not be kept for longer than necessary, and retention policies should be clearly outlined.
Integrity and Confidentiality – Employers must ensure that data is securely stored and protected from unauthorised access.
Accountability – Organisations must demonstrate compliance with GDPR through proper documentation and policies.
GDPR in the employment context
HR departments process extensive personal data throughout the employee lifecycle, from recruitment to termination. Employers must establish a lawful basis for processing this data, which can include contractual necessity, legal obligations, or legitimate interests. Consent is generally not the preferred basis in employment relationships due to the inherent imbalance of power.
Employees also have extensive rights under GDPR, including:
The right to be informed about data collection.
The right to access their personal data.
The right to rectification and erasure of incorrect or outdated information.
The right to restrict processing or object to certain uses of their data.
The right to data portability.
Employers must facilitate these rights and ensure that their policies align with GDPR requirements.
Data Collection and Processing by Employers
Employers must carefully manage personal data, ensuring that collection and processing align with legal requirements. The UK GDPR governs what data employers can collect, the lawful bases for processing, and how data should be handled.
Types of personal data employers can collect
Basic Personal Information: Name, address, date of birth, and contact details.
Employment Details: Job role, work history, and qualifications.
Financial Information: Bank account details, tax codes, and National Insurance numbers.
Health and Safety Information: Accident records, sickness absence, and medical conditions.
Sensitive Personal Data: Race, ethnicity, religion, trade union membership, biometric data, and sexual orientation (which require additional safeguards).
Employer obligations under data protection law
Employers must:
Minimise data collection – Only gather data necessary for employment purposes.
Ensure transparency – Provide clear privacy notices explaining data collection and usage.
Secure employee data – Implement robust security measures to protect against breaches.
Comply with retention policies – Store data only for the required duration and delete unnecessary records.
Employee Rights to Data Access and Deletion
Employees have a right to access and, in some cases, request the deletion of their personal data under GDPR.
Data Subject Access Requests (DSARs)
Employees can submit a Data Subject Access Request (DSAR) to view personal data held by their employer. Employers must respond within one month (extendable by two months for complex requests).
Employers must provide:
A copy of the requested data.
Information on how the data is processed.
Justifications for data retention.
Employers may refuse excessive or unreasonable requests but must document their reasoning.
Right to Erasure
Employees can request deletion of their personal data if:
The data is no longer necessary.
They withdraw consent.
The data was unlawfully processed.
However, employers can refuse deletion if the data is required for legal obligations, the defence of legal claims, or public interest reasons.
Security Measures and Responding to Data Breaches
Security Measures for Protecting Personal Data
Employers must implement stringent security measures to protect employee data, including:
Encryption and Access Controls: Restricting access to personal data to authorised personnel.
Multi-Factor Authentication (MFA): Adding an extra layer of security to logins.
Regular Security Audits: Ensuring compliance with data protection policies.
Employee Training: Educating staff on recognizing security threats such as phishing.
Responding to a Data Breach
If a breach occurs, employers must:
Contain the breach – Identify and mitigate further risks.
Assess the impact – Determine whether employee rights are affected.
Notify the ICO – Report serious breaches within 72 hours.
Inform affected individuals – If there is a high risk of harm.
Review security measures – Implement stronger protections to prevent future breaches.
AI in Recruitment and Discrimination Risks
The rise of Artificial Intelligence (AI) in recruitment introduces new challenges, particularly in preventing bias. AI tools can inadvertently reinforce biases found in historical hiring data. Employers using AI-driven recruitment must:
Conduct bias audits to detect and mitigate discriminatory patterns.
Ensure human oversight to review AI decisions.
Provide transparent explanations to candidates on how AI impacts hiring decisions.
Non-compliance can lead to violations of the Equality Act 2010 and GDPR, exposing businesses to legal risks.
International Data Transfers
Transferring employee data outside the UK is subject to strict regulations. Employers must ensure that data transfers comply with:
Adequacy decisions – Free transfers to countries deemed to have adequate data protection standards.
Standard Contractual Clauses (SCCs) and International Data Transfer Agreements (IDTAs) – Required for transfers to countries without adequacy status.
A Transfer Risk Assessment should be conducted to evaluate the legal environment and security risks before transferring data internationally.
Future Developments: Data Protection and Digital Information Bill
The Data Protection and Digital Information Bill (DPDI Bill) aimed to reform the UK’s data protection framework post-Brexit but failed to pass before the 2024 General Election. Despite its failure, businesses should prepare for future reforms, including:
Potential changes to legitimate interests in data processing.
Relaxation of automated decision-making restrictions.
Updates to international data transfer rules.
The UK’s EU adequacy status expires in 2025, meaning further legislative developments are likely in the coming years.
