The Greek equivalent of the ICO have issued a €150,000 fine of PwC for having the wrong lawful basis for processing for their employee’s data. PwC required employees to consent to the processing of their data when other lawful basis were more applicable; furthermore, PwC had also failed to properly document their lawful basis for processing and therefore failing the GDPR’s accountability principle.
Consent as the lawful basis
Consent should always be thought of as a binary choice, a yes or no, so asking employees to consent to the processing means employees could always say no, and given that in terms of HR processing it’s usually necessary to process an employees personal data to meet contractual obligations (e.g. payroll) or legal obligations relating to employment law, it is not appropriate that consent was sought as the lawful basis of processing. Indeed, given that the processing would carry on either if an employee said no or that it would not be in the interest of the employee to say no, it therefore fails the consent test in terms of the GDPR requiring consent to be freely given.
Of course, this is a lesson to anyone using consent as the lawful basis and to ensure that it is the most appropriate (and lawful) basis for processing personal data.
Are your HR processes compliant?
Wondering whether you’ve got the right lawful basis for processing for your employees? Well, best check – remember consent is highly unlikely to be appropriate for normal HR activities, but may be needed for some additional processing activities not covered by general employment. You should be looking at contract, legal obligation and legitimate interest as the most likely lawful basis to pursue.
And, don’t forget you need documentary evidence of which lawful basis you’ve chosen as well.
An English summary of the case available here.