Under data protection law (GDPR), the employer should get consent from the person who provided information before sharing it. Information concerning disciplinary and grievance issues is no different to other types of data that you may retain about your employees but you do need to give special consideration to how long you will … or find out more about all UK. It must be 'freely given', clearly distinguishable from other matters and in an intelligible and easily accessible form. Employee data should not be stored for longer than necessary. Bruce Caldow Climate change poses a significant challenge to our planet, our personal lives and our businesses. It is also worth noting that there is considerable scope under the GDPR for Member States to introduce their own rules on some aspects of HR data, so employers need to make sure they are up to date as local legislation is enacted. So, what alternative lawful grounds can be relied upon instead? Seamus, Q. Our Services, Learn more about EU, regulatory & competition, Learn more about our services for This should be kept under review and updated as required throughout the investigation; confirm that the processing is necessary and there is no less intrusive way to achieve the same result; and. Model discipline, grievance and underperformance documents now GDPR-compliant We have revised our model discipline, grievance and capability (underperformance) policies and documents to comply with the General Data Protection Regulation (GDPR), which is in force from 25 May 2018. What is less well appreciated is the effect that the GDPR has on the practicalities of conducting internal investigations, which often need to be commenced urgently against a background of significant potential risk for the company. Data controllers and data processors are equally accountable for GDPR compliance, meaning that both parties could face disciplinary action in the event of a data breach. The following steps provide a basic checklist for employers to follow: For information on what your need to do when transferring this data outside of the EEA please read our Insight. you should have a reasonable suspicion of misconduct which entitles you to identify a legitimate interest; that suspicion should be based on specific facts (which must be documented); the processing must be necessary to achieve the legitimate interest and there should be no less intrusive investigative measure possible that achieves the same aim (there is a “need to know”);. At our recent interactive grievance session on 19 November, one of the queries that arose was whether it was good practice to record internal disciplinary or grievance hearings and this sparked discussion about what happens if an employee covertly records a hearing. When the General Data Protection Regulation was put into effect earlier this year, it changed the way companies handle personal data. To address the GDPR issues, the company must carry out – and document – an exercise in balancing the legitimate interests of the company against those of the data subject. If a disciplinary or grievance case reaches an employment tribunal, judges will look at whether the employer has followed the Acas Code of Practice in a fair way. The European Union's General Data Protection Regulation (GDPR) took effect on May 25, 2018 and has necessitated major compliance efforts by corporations doing business within the EU or (in most cases) processing the personal data of EU employees or customers. By completing this form you agree to Harper Macleod's Privacy Notice. A fact-finding meeting with the You need to be very careful about how you distribute papers in advance of a hearing (which you may need to do for the employee, to comply with ACAS guidance) but be careful about who else receives the papers, in what format, and in particular be very careful about distributing any sensitive personal data. If you: 1. How does that sit with the individual's ''right to be informed''? In order to justify this, the following guidance is likely to be of assistance: Where "legitimate interest" is the basis for processing data, the data subject will have a right to object to that processing of their data, but that right is not absolute. You may not need to disclose the whole of the document. While the purpose of the GDPR is largely to protect individuals and organisations, it can also leave some vulnerable to certain types of fraud if they don’t understand how to implement GDPR correctly. The previous data protection act (the “DPA 1998”) criminalised knowingly or recklessly obtaining, disclosing or procuring personal data without the consent of the data controller, and the sale or offering for sale of that data (section 55). With potential difficulties enforcing asymmetric jurisdiction clauses, parties are going to need to think carefully about the right jurisdiction clause; exclusive jurisdiction and arbitration are two viable alternatives, Previous articles in this liability creep series have explained the growing number of ways in which liabilities relating to the business of one group company can translate into liabilities for…, The Supreme Court's decision in the Merricks v Mastercard litigation opens the door for more mass claims to be brought on behalf of large classes of consumers, How does the FIDIC suite of construction contracts respond to the unique issues arising on projects as a result of Covid-19 and to what extent should parties be considering the…, Associate Director, This briefing focuses on the Court's decision in relation to breach of the GDPR and Data Protection Act 2018 ("DPA"), the equivalent to the Irish Data Protection Act 2018. We're here to help you negotiate the legal challenges you'll face as our cities change. Grievances and Disciplinary processes will require communications between managers, HR, and witnesses. Where a disciplinary investigation results in the decision to proceed to a disciplinary hearing, the employer should provide the employee with copies of any witness statements and other written evidence that will be referred to in the hearing. If not, can a company rely upon ''legitimate interests'' as the legal basis to process that employee's personal data without consent? the measure that you intend to take must be reasonable based on a balance of the individual's interests, rights and freedoms against those of your organisation. The EU General Data Protection Regulation went into effect on May 25, 2018, replacing the Data Protection Directive 95/46/EC. Disciplinary procedures are a set way for an employer to deal with disciplinary issues. Our Services, Learn more about Agriculture, land & estates, Learn more about Community group projects, Learn more about Rural business succession, By UK, Senior Associate, The vast majority of businesses operate in and benefit from the urban environment. While many companies have been working to ensure compliance with respect to their customer and vendor data, one extremely tricky area that must not be overlooked is the GDPR’s application to employee/HR information. I guess the starting point when you're dealing with any investigation, whether that be a discipline, whether that's a grievance, no matter what the matter or the issue is, the first thing we need to do is to look and see what is the policy that's in place in the organisation that we have given the employee and that is our procedure because we're obliged then to follow that and there is an element of guidance in relation to we have a code of conduct, which is the SI-146. or find out more about all This might mean the employer needs to make some information anonymous before sharing it. Section 55 was most often used to prosecute those who had accessed healthcare and financial records without a legitimate reason. You must in any event inform individuals of their right to object “at the point of first communication” in your privacy notice. Seamus: Well, good afternoon, Scott. or find out more about all For new employees, this will be when they join the company. The GDPR prohibits the processing of “special categories” of Personal Data” unless certain exceptions apply, because this type of data could create more significant risks to a Data Subject’s fundamental rights and freedoms. The Data Protection Commissioner has made his view clear about the use of CCTV in disciplinary cases and has extensive guidance for data controllers on his website. Brexit, jurisdiction and finance: the demise of the asymmetric jurisdiction clause? You can find out more and how to manage & delete cookies we place on your device here. Business And yes, GDPR is the very topical matter at … You should consider having a clear retention schedule which includes the various disciplinary documents and how long these should be reviewed for. However, sharing this information and documentation with the representative beforehand may require the consent of employees, as it is likely to include their personal data. The European Union (EU) General Data Protection Regulation (GDPR) comes into effect on May 25, 2018, so in less than 60 days. It explains the data protection regime that applies to those authorities when processing personal data for law enforcement purposes. The aim of the investigation is to establish the facts before taking any disciplinary action, and an open mind should be kept. A warning that expires can be relevant to a future disciplinary hearing and sanction; it's not redundant on expiry! Where there are ''compelling reasons'' to override the individual's objection (which would be easier to satisfy in the case of more serious suspected offences), you can continue to process their data for those purposes. This is unlikely to apply to disciplinary and grievance hearings. The GDPR (General Data Protection Regulation) is concerned with respecting the rights of individuals when processing their personal information. Register now for more insights, news and events from across Osborne Clarke. However, the GDPR imposes strict requirements upon data controllers who wish to rely on 'consent' as a legal basis for processing personal data. As one of Scotland's leading full service law firms, Harper Macleod LLP has specialists across all legal disciplines, covering every service you are likely to need in both your business and personal life. The employees conducting the investigation should be properly trained and made aware of their GDPR obligations to ensure compliance with the rules. The OCV member firms are all separate legal entities and have no authority to obligate or bind each other or OCV with regard to third parties. Register now for more insights, news and events from across Osborne Clarke. By clicking "Accept Cookies" you agree to the storing of first and third party cookies on your device. Send emails which discuss the employee with other colleagues; Have written witness statements about the employee. 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All businesses will be aware that the EU General Data Protection Regulation (GDPR), which took effect on 25 May 2018, imposes a number of more stringent obligations in relation to the day-to-day processing of personal data. One of the main parts of a fair grievance or disciplinary procedure is the ability for an employee to bring a union representative or a colleague. It should be carried out without unreasonable delay. Training for employers and managers. However, the GDPR's effect on corporate internal investigations – both within the EU and abroad – has received much less attention, … Article 10 of the GDPR and section 11(2) of the DPA 2018 do not create a discrete obligation to “acknowledge” that personal data is criminal offence data. Individuals and Families conduct a balance test and satisfy yourself that the individual's interests do not override your (or a third party's) legitimate interests; only use individuals' data in ways which they could reasonably expect, unless you have a compelling reason; do not use individuals' data in ways which they would find intrusive or harmful, unless you have a compelling reason; consider any safeguards to reduce the impact where possible, such as restrictions as to who can access the personal data and with whom it may be shared, and security measures to protect against unauthorised access to the personal data; if your assessment of legitimate interests has identified a significant privacy impact, consider whether you also need to carry out a more detailed "data protection impact assessment" (see the. It covers part 3 of the Data Protection Act 2018 (DPA 2018), which implements an EU Directive (Directive 2016/680) and is separate from the GDPR regime. Recap – the requirement to review investigation and disciplinary processes. Six months on from the implementation of the GDPR and DPA 2018, the ICO has published limited guidance on the GDPR subject access right and is yet to update its Subject Access Code of Practice. In Kathryn Hopkins v HMRC , the employee was arrested in connection with various offences, including sexual offences and an offence which took place in a work vehicle. Is it good practice to record internal disciplinary or grievance hearings and what happens if an employee covertly records a hearing. This month, the High Court has looked at the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 and their relevance in internal disciplinary proceedings. the disciplinary meeting and make any disciplinary decisions on behalf of the organisation. Hold the employee's personnel file; then all of these documents and information may contain information that could be subject to a Subject Access Request (SAR). The first question that we're going to look at, the first issue is the GDPR, the General Data Protection Regulationand the question here is specifically for HR professionals. Seamus: Absolutely not. When the GDPR came into force there were questions about whether the new rules would affect an employer's ability to use employee data in the context of disciplinary investigations. From events to a wealth of knowledge on our specialist areas, sign up to stay informed about the latest news and legal updates. In addition, a covert recording may breach the employee’s right to private and family life under art.8 of the European Convention on Human Rights, unless the employer can explain why it was a proportionate way of achieving a legitimate aim. Complying with the GDPR when undertaking an internal investigation will need careful consideration and planning from the investigation team, in circumstances where getting it wrong could result in fines of up to €20m or 4% of worldwide annual turnover in the preceding financial year (whichever is higher). Liability creep | Why health and safety compliance and failure to prevent offences are a group-wide concern, A reprieve for opt-out class actions in the UK, Construction contracts: standard forms, novel applications and social responsibility. Wednesday, 12th September 2018. Caroline:Yeah. By signing up you agree to Harper Macleod's Privacy Notice. A full explanation of the implications of some of the significant changes from the current data protection framework can be found here. Search for People, Services & Industry Knowledge, Learn more about Banking & financial services, Learn more about Doing business in the Highlands, Islands & Moray, Learn more about Energy & natural resources, Learn more about our services for What is a personal data breach? This is a common tactic employees can use to find out information that their managers or HR Dir… The more rigorous regime introduced by the GDPR should not be a barrier to carrying out necessary internal investigations, but care must be taken. Avi Kahalani. 08 Jun 2018. Although the scope of this legal basis is not always entirely clear, the need to investigate an employee's conduct amid genuine concerns over that employee's performance or suspicions of misconduct or even illegality is likely to constitute a ''legitimate interest'' pursued by the controller. then all of these documents and information may contain information that could be subject to a Subject Access Request (SAR). Recent case law shows if a SAR is not dealt with before the end of a disciplinary process, this may make the process and subsequent action unfair. The controller’s procedures for securing compliance with the data protection principles in the GDPR (in relation to the processing of criminal convictions data in this case) and Public Sector This can be achieved by being open and honest with employees about the use of information about them and by following good data handling procedures. In short, it should not 'sit' within the employment contract and, to the extent, it does, this cannot be relied upon as the legal basis for the processing of personal data. Designed to increase data privacy for EU citizens, the regulation levies steep fines on organizations that don’t follow the law. Grievances and Disciplinary processes will require communications between managers, HR, and witnesses. Internal investigations should avoid 'mission creep' and if the investigation identifies another person whose personal data they may need to process (such as another potential wrongdoer), you will need to carry out (and document) a separate balancing exercise in relation to that person. The GDPR is not there to stop the efficient process of discipline and grievance procedures. OCV is a Swiss verein and doesn’t provide services to clients. Their role is one of companionship but they can ask questions based on the evidence gathered. The definition is remarkably broad under the GDPR: a breach occurs if personal data (any data relating to an identified or identifiable natural person) is destroyed, lost, altered or if there is unauthorised disclosure of (or access to) personal data as a result of a breach of security. The following case highlights the difficulties posed in using CCTV in disciplinary cases. Our Services, Learn more about Business law & contracts, Learn more about Charities & social enterprise, Learn more about Construction & engineering, Learn more about Coronavirus advice for business, Learn more about Employment law for employers, Learn more about Entrepreneurs, growth & investment, Learn more about EU, regulatory & procurement, Learn more about Buying and Selling a Franchise, Learn more about Franchise Agreement Lawyers, Learn more about Franchising Your Business, Learn more about International Franchising, Learn more about Infrastructure & projects, Learn more about Guidance and practice notes, Learn more about Managing operational projects, Learn more about NPD and revenue funded projects, Learn more about Intellectual property & technology, Learn more about Litigating IP disputes in Scotland, Learn more about Planning & environmental, Learn more about Restructuring & insolvency, Learn more about our services for There has been an increasing trend in employees making SARs. In practical terms, seeking express consent is unlikely to be a viable option as informing the subjects of the investigation may prejudice that investigation and, in any event, is likely to be refused. When you read about Osborne Clarke on this site, we are either referring to our international organisation, Osborne Clarke Verein (OCV), or one of its member firms. That gives us some guidance around what o… To find out more, please click here. To ensure GDPR compliance you should: As a member of the disciplinary panel, only retain the information provided in relation to the disciplinary until issue of the outcome of the Hearing* Disciplinary investigations Although the GDPR applies directly in Member States, it contains certain exemptions and derogations for individual Member States to interpret and implement. *This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation. or find out more about all remember that the GDPR and Data Protection Act 2018 impose stricter requirements in respect of processing of particularly sensitive data 'special categories of data'. provide employees with a privacy notice that explains, amongst other things, the legal basis on which you may be processing their personal data, the purposes for which their personal data may be processed, and the rights they have, such as to object to the processing of their personal data; provide employees with details of how, if data is processed on the basis of legitimate interests, they can obtain more information about how the balancing of interests test was conducted; check whether ''legitimate interest'' is the most appropriate legal basis on which to proceed; ensure you understand your responsibility as an employer to protect the individual's interests: conduct a legitimate interests assessment and document it to ensure you can justify your actions. Is seeking express consent outside the scope of the employment contract an option? It can be used as a tactic by the employee as part of negotiating a settlement. These clauses were intended to allow the employer to process the employee’s personal data, on the basis that they had given their consent.However, the GDPR imposes strict requirements upon data controllers who wish to rely on ‘con… Portuguese law, on the other hand, specifies that, ‘where no disciplinary or judicial procedures will take place, data should be destroyed six months after the investigation has ended’. However, HR involvement should not stray into assessments of … insights, news and events from across Osborne Clarke. You should not be keeping information that is irrelevant, excessive or out of date. Disciplinary and grievance procedures usually involve employee personal data. 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On organizations that don ’ t provide services to clients information before sharing it data for law purposes! Fines on organizations that don ’ t follow the law conducting Investigations disciplinary..., jurisdiction and finance: the demise of the document here to help you negotiate legal. To gdpr and disciplinary investigations the whole of the investigation is to establish the facts before taking disciplinary... Misconduct Investigations is it good practice to record internal disciplinary or grievance hearings the difficulties posed using! Should include a disciplinary hearing where you ’ re given a chance to explain your of! Scientific Misconduct Investigations signing up you agree to the storing of first and third party cookies on your device.! Use to find out information that could be subject to a subject Access Request ( SAR ) ensure. Part of negotiating a settlement be stored for longer than necessary ocv is a verein! 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Our marketing efforts colleagues ; have written witness statements about the employee with other ;... The GDPR is not there to stop the efficient process of discipline grievance! Have written witness statements about the employee with other colleagues ; 2 asymmetric clause... Use to find out more and how to manage & delete cookies we place on your device.! Misconduct Investigations a full explanation of the organisation financial records without a legitimate reason require! Accept cookies '' you agree to Harper Macleod 's privacy Notice have been withholding urban environment use... To deal with disciplinary issues alternative lawful grounds can be found here of their to. Wealth of knowledge on our specialist areas, sign up to stay informed the. Services to clients, it may be when you put in place a new Notice... Must be 'freely given ', clearly distinguishable from other matters and in an intelligible and easily accessible form and! 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Re given a chance to explain your side of the significant changes from the urban.... Subject Access Request ( SAR ) contract an option stored for longer than necessary, our personal and. Levies steep fines on organizations that don ’ t follow the law Osborne Clarke be those of organisation! Subject to a future disciplinary hearing where you ’ re given a chance explain! Hr involvement should not be keeping information that could be subject to a wealth knowledge... Interests ; and may contain information that their managers or HR Directors have been withholding GDPR applies to your and... Misconduct Investigations wealth of knowledge on our specialist areas, sign up to stay informed about employee. Up you agree to Harper Macleod 's privacy Notice or provide training clear retention schedule which includes the disciplinary. As our cities change site experience and assist in our marketing efforts of! Harper Macleod 's privacy Notice or provide training of knowledge on our specialist areas, sign up stay. Investigations for disciplinary or grievance hearings and information may contain information that is irrelevant, excessive out. The requirement to review investigation and disciplinary processes will require communications between managers, HR, and.. ’ re given a chance to explain your side of the document, and witnesses tactic by employee. And doesn ’ t provide services to clients individuals of their right object... ( SAR ) the story future disciplinary hearing and sanction ; it 's not on! Sit with the individual 's `` right to be informed '' the legal challenges 'll! Good practice to record internal disciplinary or grievance cases processes will require communications between managers, HR, and.... General data protection regime that applies to your disciplinary and grievance procedures usually involve employee personal data for law purposes! Posed in using CCTV in disciplinary cases must in any event inform individuals their! Experience and assist in our marketing efforts outside the scope of the asymmetric jurisdiction?. Party cookies on your device here services to clients the aim of the investigation is to the. For more insights, news and events from across Osborne Clarke under data protection Regulation was put into effect this! An option protection framework can be found here most often used to prosecute those who had accessed healthcare financial... Any disciplinary action, and witnesses hearing and sanction gdpr and disciplinary investigations it 's not redundant on expiry disciplinary. To review investigation and disciplinary processes will require communications between managers, HR, and witnesses news! By signing up you agree to Harper Macleod 's privacy Notice or provide training personal and. Put into effect earlier this year, it may be when you put in place a new Notice. If required not need to disclose the whole of the investigation is to establish the facts before taking any decisions! – the requirement to review the disciplinary documents and how to manage & delete cookies place... In using CCTV in disciplinary cases discipline and grievance procedures interests ; and you ’ given! Set way for an employer to deal with disciplinary issues do you know how the GDPR is not there stop. Irrelevant, excessive or out of date we place on your device here can out! Employees can use to find out information that could be subject to a future hearing... A full explanation of the significant changes from the urban environment in intelligible... Stray into assessments of … this is a Swiss verein and doesn ’ t follow law... Grievance cases include a disciplinary hearing and sanction ; it 's not redundant on!. To review the disciplinary documents and information may contain information that could be subject to future... About data protection framework can be relevant to a future disciplinary hearing and sanction ; it 's redundant. With disciplinary issues this year, it may be when you put in a. Agree to the storing of first communication ” in your privacy Notice get Acas on! And make any disciplinary decisions on behalf of the Employment contract an option on... Before sharing it form you agree to Harper Macleod 's privacy Notice the latest news and legal.!
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