Employers cannot expect the ISSA to apply a harmonized approach to the use of consent in an employment mind, either with respect to consent or regulatory guidelines. In some Member States, national labour legislation must also be taken into account and the RGPD contains a cross-sectional provision that makes it possible to relax the various aspects of compliance in order to reflect them. This means that you should consult before making a decision on the legal basis for processing personal data of staff in other EU countries or on the development of a uniform approach to EU human resources operations on the ground. The invocation of consent as a legal basis for the treatment of persons has taken some turns in the context of employment. When the Data Protection Act 1998 introduced for the first time the requirement for a legal basis for the processing of personal data, employers tended to take a rather simplistic approach and include a consent provision in the employment contract. As workers were required to sign the contract, employers felt that it was sufficient to approve it (including the approval provisions) to meet the legal requirements. To move quickly closer to the RGPD with its expanded standard of approval, which must now be released, concrete, informed, clear and associated with affirmative action, and explicitly with regard to specific or sensitive data. As the Information Commissioner`s Office points out in its consent guidelines, there is likely to be an imbalance of power between the employer and the worker, which complicates consent in basic day-to-day employment practices. In addition, the European Data Protection Committee`s approval guidelines note that most data processing in the workplace cannot be based on workers` agreement. If the worker is free to give consent, the employer must ensure that the other consent requirements of the RGPD are also met. There are many ways to do this, but the employer must provide clear explanations of what the worker agrees with him and the possible consequences of the agreement, and ensure that the worker actively agrees on the treatment described by a clear positive measure. In addition, the worker has the right to withdraw his consent at any time and must be informed of that right. However, revoking consent would thwart the employer`s ability to engage in activities that may be necessary and justified in an employment relationship.
It would be an exaggeration to say that consent is never an appropriate legal basis in an employment relationship. As noted above, the main barrier is to ensure that the employee “releases” consent. In some situations, a worker has a real choice, for example. B when an employer wants to make a promotional video about the company and involves some of its employees on a wholly voluntary basis.