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The General Data Protection Regulation (GDPR) is due to come into force in the UK on 25 May 2018. The aim of the GDPR, which replaces the current Data Protection Directive, is to establish a modern and harmonised data protection framework across the EU.  I'm going to be looking at some questions being raised about this topic.

When can employers rely on employees' consent to process their data under the GDPR?

The circumstances in which employers can rely on employees' consent as the legal basis for processing their data are extremely limited under the General Data Protection Regulation (GDPR). This is because, for consent to be valid, it must be "freely given". The imbalance of power in the employment relationship means that this condition will rarely be met where the employer asks an employee for consent to process his or her personal data. Further, employees are free to withdraw their consent at any time, making it impractical for employers to use consent as the basis for their processing.

Employers should rely on consent only where no other legal basis for the processing applies (ie it is not necessary for the performance of a contract, compliance with a legal obligation or the employer's legitimate interests) and there will be no adverse consequences for an employee who refuses to provide consent.

For example, an employer may wish to publish a photograph on its intranet of an employee taking part in a charity event organised by the employer. This would constitute processing of the employee's personal data. The employer could ask the employee for his or her consent to publish the photograph on the understanding that, if he or she does not agree to this, the employer will use a different photograph and the employee will not suffer any consequences.

Another example of where it could be appropriate for an employer to rely on consent for processing personal data is where it runs employee networks with the aim of promoting workforce diversity, for example a network for LGBT employees or a network for employees with disabilities. Provided that the networks are run on an entirely voluntary basis, the employer could rely on consent as the basis for processing the data of employees who wish to be involved. There must be no negative consequences for employees who choose not to consent to their data being processed for that purpose. Consent is one of the conditions that an employer can rely on to process special category data such as information about an employee's health or sexual orientation.

If you need help with any aspect of GDPR and your workforce, please email This email address is being protected from spambots. You need JavaScript enabled to view it.

Half of people on zero hours contracts (ZHC) and two in five people on temporary contracts wrongly believe they are not entitled to paid holidays, Citizens Advice (CA) reveals this week.

In the last financial year, almost 185,000 people got help from CA on employment issues - with 10,000 cases specifically about paid holiday. Over the same period the CA webpage on paid holiday had 260,000 visitors.

One man who was told by his employer that night workers are not entitled to paid holiday has incorrectly missed out on paid holiday of £8,900 calculated over a five year period. A woman who worked in the sales sector, was told that she could only take holiday if she met her sales targets, which is unlawful.

So in respect of ZHCs, the statutory minimum holiday entitlement of 5.6 weeks will accrue pro rata to the number of hours and days worked, but people
working under a ZHC are unlikely to have regular hours and may not know in advance for how long a period of work will last. So how do you calculate
holiday entitlement in these circumstances?

Get ready!

5.6/(52-5.6) x 100 = 12.07%

Phew! Why this calculation? Because you are taking into account the statutory minimum holiday entitlement and weeks in the year to reach this figure and it's felt to be a fair way for those working variable hours. It would be different if your annual holiday entitlement is greater than the statutory minimum.

As an employer, you must allow the individual to take a period of paid holiday (subject to your holiday policy and rules) or pay an amount in lieu of
the accrued holiday at the end of each period of work.

A word of caution here, you may create an employment relationship which remains in place even when the individual is not provided with work and so
employment rights are accrued. If you are happy with that then a differently worded contract may be more appropriate. Remember, there is no legal definition of a ZHC and it does not confer any special status on an individual.

So, if you haven't reviewed your employment documentation recently then it would certainly be worth doing so to make sure it reflects what is actually
happening in your workplace. A ZHC should no longer seek to prevent the individual from working for another employer or require the worker to obtain
your permission before working for another employer.

As always the devil is in the detail and happy to help with your review.