Data protection and employees

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 the data protection rights of your staff, 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 failure in the duty to maintain trust and confidence, or it 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 is a statement detailing how you collect, use, retain and disclose personal information.

Where data processing is likely to result in a high risk to individuals (eg denial of 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 and 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 can ensure that you follow a set process that gives confidence to employees and clients alike and helps avoid any potential claims.

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.

You will unavoidably handle data coming 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 avoid disability discrimination.

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 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.

In principle, all health information is private and there should be a clear basis for collecting or processing it (eg 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 in health). Once processed, health information must be kept secure. Drug or alcohol testing will usually only be permissible for clear health and safety reasons.

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

Using information from employees’ personal social media usage to take employment decisions raises difficult issues of 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.