My HR team would like to collect Special Category Data for ED&I reporting purposes. On the (new) HR system there is a field for employees to add this data.
By choosing to complete this field, does that count as sufficient consent from staff members?
Thank you.
Collecting Special Category Data for staff
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Elisavet D.
It has already been established that consent is not valid in the employee-employer relationship due to the imbalance of powers. Even if consent would be a valid legal basis, for Article 9 personal data, you need a specific condition to apply (article 9 para. 2), such as explicit consent. Therefore, just an affirmative action (which qualifies for consent), would not meet the requirement of explicit consent.
I would recommend to rely on another legal basis and identify another condition for processing special categories of personal data. Note that you need both a legal basis and an article 9 para. 2 condition to apply in order to process special categories of personal data.
Tash
If you are UK based, then the DPA2018 bits that Hellen mentioned are the way to go
HellenB
In the UK you can use Schedule 1 Part 2 – Substantial Public Interest Conditions (8) Equality of opportunity or treatment or (9) Racial and Ethnic Diversity at senior levels of organisations
You could also use a tool such as FairHQ which would collect and monitor this information for you.
As Elisavet says, it is very difficult to use consent in an employment context and therefore you would want to be reliant on this provision.
Henk van Leussen
I think that if the purpose of processing and the legal basis are well formulated and there is no compulsion to give consent, it should not be a problem. Hopefully your organisation complies with the GDPR on all fronts.
Andrea
How comfortable are you that your employees consent will be freely given, in light of the imbalance of power between an employer and employee? Could you identify a different legal basis?