Facts employees should know about their personal data

We previously published an article on facts an employer should know about holding personal data (check out this article here), so it is only fair that we also write about the other side of the coin – facts employees should know as individuals whose personal data is held by their employer.

But first thing’s first, what is personal data?

This is any information relating to a particular person which can be used to identify said person, whether directly or indirectly.

Employers generally hold large amounts of personal data about each of their employees, such as their name, address, date of birth, sex, education and qualifications, National Insurance number, employment history, their current employment contract containing details of the employee’s hours of work, pay, benefits, etc.

The facts to know

1. Protecting personal data

Employees’ personal data held by their employer must be kept secure and not be susceptible to data breaches. Employee data breaches are serious and employers have strict obligations when it comes to protecting employees’ personal data. If the breach causes actual harm to the data subjects/employees, it may be that the employee chooses to report the matter to the ICO and could decide to progress this further by pursuing court proceedings.

2. Special category data

There are various types of personal data which belong to this category as they are considered to be ‘sensitive’, such as race and ethnicity, religion, medical conditions and sexual orientation. Employers usually require an employee’s consent before being able to process such personal data. Another point to note is that the employer will require a particular purpose to process such personal data. As an employee you should be aware that employers are required to ensure that additional safeguards are in place to protect this type of data due to the sensitive nature of it.

3. References

Unless a relevant exemption applies, for example, if the job reference contains another individual’s personal data, as an employee you may be able to obtain a copy of your job reference from your current employer.

4. Data subject access requests (DSARs)

DSARs are requests made by individuals to organisations which hold their personal data, to access this personal data. Organisations must respond without undue delay, and in any case, within one month of a DSAR being made unless this is not possible and an extension is required (the maximum to 3 months). Employees can make DSARs to their employers at any time, and the request does not only have to relate to receiving copies of your personal data, but also includes other requests, such as a request to delete your personal data and find out if any automated processing is involved in processing your personal data.

5. Data processing in general

Employers are considered to be data processers, and there are six lawful reasons for processing data. In an employment context, these are the following:

• The employee consents to the data processing
• There is a contractual reason for the data processing
• The employer is processing data to comply with a legal obligation
• The employer is processing data to protect the vital interests of people
• There is a public interest reason or the employer is carrying out its official functions
• The employer is processing data for its legitimate business interests, as long as these interests are not overridden by the employee’s legitimate interests

6. Data processing using artificial intelligence (AI)

There are limitations on an employer’s use of AI in the processing of employee personal data. AI should not be used in making employment decisions without any human scrutiny as this would fall within the restricted area of “solely automated decision”. This is a crucial data protection right in the UK GDPR, and if you are an employee who suspects that your employer has breached this, by for example, dismissing you based on an automated system, you could have grounds to pursue a claim for unfair dismissal.

7. Data retention

As an employee you have a right to your data not being kept for longer than is necessary. So if you’ve left your employment, your previous employer should delete from its records your personal data which it is unlikely to need again. Examples of such data could be emergency contacts or previous addresses. Please note that some statutory provisions apply in respect of certain amount of records, for example, pay and tax records, and the retention periods will also be subject to your employer’s retention policy.

8. Challenging the accuracy of personal data

Any data subject can challenge the accuracy of personal data held by an organisation and ask that it is corrected. As an employee you can therefore ask your employer to rectify or delete personal data it holds on you. For example, this could relate to updating your address or bank details. Keep in mind, however, that opinion data is not the same as personal data, so if the data you seek to “correct” is an opinion about you, and the record is clear that the data is an opinion, it is difficult to argue that this is inaccurate and needs correcting.

If you have any data protection concerns, please do not hesitate to contact our Data Protection lawyers who would be happy to help.