Data protection queries from employees on the increase

The Data Protection Commissioner recently advised that the most resource intensive aspect of her office’s work involved individual complaints arising from “relationship breakdowns” of one form or another. Ibec has already observed a steady increase in the number of queries and requests arising under the Data Protection Acts 1988 to 2003 from employees to their employers in recent years. While some have referred to “digital ambulance chasing”* the reality is that employees, as data subjects, have considerable rights under the legislation. These rights, and employers’ obligations, look set to increase in strength and impact when the legislation is reformed as part of the General Data Protection Regulation due to come into effect in 2018. Given the sensitivity of some of the information which may be held in digital or manual form by an employer, it is understandable that some of these queries arise.

While the data protection legislation is nearly three decades old, there is little doubt but that more and more individuals are concerned with what information is stored about them and by whom, and who has access to it. Most of the personal data stored by employers is relatively innocuous, including data gathered for insurance purposes or identifying next of kin in the event of an emergency, but sensitivities and questions remain nonetheless.

One matter which can cause great concern among both employers and employees is the extent to which an employer is entitled to gather detailed information about the medical condition in relation to an employee. Data protection law is quite clear about the nature of consent required from an employee before sensitive personal data can be disclosed by a doctor to an employer. However, many employers have questions as to how they can then engage in a meaningful discussion with the employee about meeting, for example, the obligations under the Employment Equality Acts 1998 to 2015 in relation to reaching a reasonable accommodation where the employee has a disability, unless the employer has detailed information in relation to the medical condition in question. Other issues can arise where the employee has been involved in a disciplinary or grievance process and now has communicated through their doctor that they are suffering from a stress related illness. The employer may wish to gain an understanding of how the illness arose and whether some particular action is required on the part of the employer in relation to addressing the matter, or indeed, whether a disciplinary process should be suspended in certain circumstances.

Such is the complex nature of data protection law and the different circumstances that can arise in the workplace that it is difficult to give a blanket response to the issues raised above. However, the Data Protection Commission has in the past shown its appreciation of the conflicts that can emerge between employment law and the Data Protection Acts. To assist HR practitioners in this respect, Ibec has organised a one day event devoted solely to the analysis and resolution of these issues on Tuesday the 6th of September 2016. Members of Ibec’s Employment Law Services Unit and Knowledge Centre will provide a detailed briefing on the law as it currently stands, a review of recent landmark cases and a forecast of what is expected in the near future when regulating privacy in the workplace. Click here for further information.

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* Irish Times, Thursday 7^th July 2016, “Data Protection Commissioner Helen Dixon accuses lawyers of ‘digital ambulance chasing’'

Thursday, 28 July 2016