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Data protection and employees

Because of the close relationship between employer and employees and the special duties owed, particular data protection issues arise in the employment context.
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The basic legal rules on protecting employment data are set out in the Data Protection Act 2018 (the DPA). The DPA governs the collection, processing and distribution of personal data in the UK. 

If you breach your staff’s data protection rights this could automatically breach other duties you owe them. For example, a serious breach of data protection and privacy rights could amount to a breach of contract as a result of a failure to meet the duty to maintain trust and confidence. A breach could even be constructive dismissal. For more information, read Data protection.

Openness is key. You should tell employees the types of data you might collect about them and what you do with it in an Employee privacy notice, also known as a 'fair processing statement'. This statement details how you collect, use, retain and disclose personal information.

Where data processing is likely to result in a high risk to individuals (eg they risk being denied work opportunities), you must conduct a Data protection impact assessment (DPIA). Where intrusive action is unavoidable, think of ways to manage and reduce the impact. Provide written instructions to those involved, as a record of the steps taken.

Putting a Data protection and data security policy in place in your organisation helps ensure that you follow a set process that gives confidence to employees and clients alike and helps avoid any potential claims.

Recruitment

Recruitment processes and pre-employment checks can be intrusive. Be open about your processes, don’t collect more information than you need at each stage of recruitment and don’t retain information longer than necessary. Comply with rules about criminal convictions.

Special category personal data

You will unavoidably handle data that sits within the 'special' categories of personal data, ie sensitive personal data (eg when you manage sickness absence or administer employee benefits). This can usually only be done with explicit and freely-given consent, to safeguard health and safety, or to avoid disability discrimination.

Workplace monitoring

Many employers monitor emails and other IT use or have workplace CCTV. This is permitted as long as you have a legal basis to do so. You should tell staff if you have such procedures in place and you should consider less intrusive ways to achieve the same goal.

You should also take steps to avoid reviewing obviously personal materials. Accessing an employee’s computer material or personal account without their consent is considered hacking and is a criminal offence that can have serious legal implications. Consider introducing a Communications and equipment policy to maintain transparency when it comes to monitoring communications and IT equipment and resources. Covert surveillance is especially intrusive and can only be used in extreme cases and on a limited basis. For more information, read Employees' use of IT.

Health and medical information

In principle, all health information is private. If you collect it, there should be a clear basis (ie justified reason) for collecting or processing it. For example, employers may require certain information from staff about their Coronavirus (COVID-19) vaccination status to comply with employment law, the employer’s health and safety duties, and for reasons of the public interest. Once processed, health information must be kept secure. Drug or alcohol testing will usually only be permissible for clear health and safety reasons.

International transfers of personal data

Transferring data outside the UK (including to group companies) requires special safeguards to be in place. For more information, read International transfers of personal data

Social media

Using information from employees’ personal social media to make employment decisions raises difficult issues related to discrimination, privacy, and data protection. It’s worth protecting the interests of yourself and your employees with a Social media policy. For further information, read Employees and social media.

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