Background to the General Data Protection Regulation (‘GDPR’)
The General Data Protection Regulation 2016 replaces the EU Data Protection Directive of 1995 and supersedes the laws of individual Member States that were developed in compliance with the Data Protection Directive 95/46/EC. Its purpose is to protect the “rights and freedoms” of natural persons (i.e. living individuals) and to ensure that personal data is not processed without their knowledge, and, wherever possible, that it is processed with their consent.
- Material scope (Article 2) – the GDPR applies to the processing of personal data wholly or partly by automated means (i.e. by computer) and to the processing other than by automated means of personal data (i.e. paper records) that form part of a filing system or are intended to form part of a filing system.
- Territorial scope (Article 3) – the GDPR will apply to all controllers that are established in the EU (European Union) who process the personal data of data subjects, in the context of that establishment. It will also apply to controllers outside of the EU that process personal data in order to offer goods and services, or monitor the behaviour of data subjects who are resident in the EU.
Personal data – any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. Special categories of personal data – personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation. Data controller – the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law.
Data subject – any living individual who is the subject of personal data held by an organisation.
Processing – any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Profiling – is any form of automated processing of personal data intended to evaluate certain personal aspects relating to a natural person, or to analyse or predict that person’s performance at work, economic situation, location, health, personal preferences, reliability, or behavior. This definition is linked to the right of the data subject to object to profiling and a right to be informed about the existence of profiling, of measures based on profiling and the envisaged effects of profiling on the individual.
Personal data breach – a breach of security leading to the accidental, or unlawful, destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed. There is an obligation on the controller to report personal data breaches to the supervisory authority and where the breach is likely to adversely affect the personal data or privacy of the data subject.
Data subject consent – means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data.
Third party – a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorised to process personal data.
Filing system – any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographical basis.
The Senior Management of Resource Management Solutions (North East) Limited, located at 3 Victoria Road, Darlington, Co Durham, DL1 5SJ are committed to compliance with all relevant EU and Member State laws in respect of personal data, and the protection of the “rights and freedoms” of individuals whose information Resource Management Solutions (North East) Limited collects and processes in accordance with the General Data Protection Regulation (GDPR).
Compliance with the GDPR is described by this policy and other relevant policies such as the Information Security Policy along with connected processes and procedures.
The GDPR and this policy apply to all of Resource Management Solutions (North East) Limited’s personal data processing functions, including those performed on customers’, clients’, employees’, suppliers’ and partners’ personal data, and any other personal data the organisation processes from any source.
Resource Management Solutions (North East) Limited has established objectives for data protection and privacy.
The Privacy Team are responsible for reviewing the processing register annually in the light of any changes to Resource Management Solutions (North East) Limited’s activities (as determined by changes to the data inventory register and the management review) and to any additional requirements identified by means of data protection impact assessments.
This policy applies to all Employees and Workers of Resource Management Solutions (North East) Limited. Any breach of the GDPR will be dealt with under Resource Management Solutions (North East) Limited’s disciplinary policy and may also be a criminal offence, in which case the matter will be reported as soon as possible to the appropriate authorities.
Partners and any third parties working with or for Resource Management Solutions (North East) Limited, and who have or may have access to personal data, will be expected to have read, understood and to comply with this policy. No third party may access personal data held by Resource Management Solutions (North East) Limited without having first entered into a data confidentiality agreement which imposes on the third-party obligations no less onerous than those to which Resource Management Solutions (North East) Limited is committed, and which gives Resource Management Solutions (North East) Limited the right to audit compliance with the agreement.
Resource Management Solutions (North East) Limited is a data controller and data processor under the GDPR.
All those in managerial or supervisory roles throughout Resource Management Solutions (North East) Limited are responsible for developing and encouraging good information handling practices within Resource Management Solutions (North East) Limited; responsibilities are set out in individual job descriptions.
The Privacy Team, who Senior Management considers to be suitably qualified and experienced, have been appointed to take responsibility for Resource Management Solutions (North East) Limited’s compliance with this policy on a day-to-day basis and, in particular, has direct responsibility for ensuring that Resource Management Solutions (North East) Limited complies with the GDPR, as do Managers in respect of data processing that takes place within their area of responsibility.
The Privacy Team have specific responsibilities in respect of procedures such as the Subject Access Request Procedure and are the first point of call for seeking clarification on any aspect of data protection compliance.
Compliance with data protection legislation is the responsibility of all Employees and Workers of Resource Management Solutions (North East) Limited who process personal data.
Resource Management Solutions (North East) Limited’s Training Policy sets out specific training and awareness requirements in relation to specific roles and the Employees and Workers of Resource Management Solutions (North East) Limited generally.
All Employees and Workers of Resource Management Solutions (North East) Limited are responsible for ensuring that any personal data about them and supplied by them to Resource Management Solutions (North East) Limited is accurate and up-to-date.
All processing of personal data must be conducted in accordance with the data protection principles as set out in Article 5 of the GDPR. Resource Management Solutions (North East) Limited’s policies and procedures are designed to ensure compliance with the principles;
• The processing is lawful, fair and transparent
• Transparent about what the data is being used for
• Data is collected for a specific purpose
• The data is necessary for the purpose
• The data must be accurate and kept up to date
• Data is not kept for longer than deemed necessary
• The data is kept safe and secure
Data subjects have the following rights regarding data processing, and the data that is recorded about them:
- To make subject access requests regarding the nature of information held and to whom it has been disclosed.
- To prevent processing likely to cause damage or distress.
- To prevent processing for purposes of direct marketing.
- To be informed about the mechanics of automated decision-taking process that will significantly affect them.
- To not have significant decisions that will affect them taken solely by automated process.
- To sue for compensation if they suffer damage by any contravention of the GDPR.
- To take action to rectify, block, erased, including the right to be forgotten, or destroy inaccurate data.
- To request the supervisory authority to assess whether any provision of the GDPR has been contravened.
- To have personal data provided to them in a structured, commonly used and machine-readable format, and the right to have that data transmitted to another controller.
- To object to any automated profiling that is occurring without consent.
Resource Management Solutions (North East) Limited ensures that data subjects may exercise these rights:
- Data subjects may make data access requests as described in Subject Access Request Procedure; this procedure also describes how Resource Management Solutions (North East) Limited will ensure that its response to the data access request complies with the requirements of the GDPR.
- Data subjects have the right to complain to Resource Management Solutions (North East) Limited related to the processing of their personal data, the handling of a request from a data subject and appeals from a data subject on how complaints have been handled in line with the Complaints Procedure.
Resource Management Solutions (North East) Limited understands ‘consent’ to mean that it has been explicitly and freely given, and a specific, informed and unambiguous indication of the data subject’s wishes that, by statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her. The data subject can withdraw their consent at any time by clicking on the link, or contacting email@example.com.
Resource Management Solutions (North East) Limited understands ‘consent’ to mean that the data subject has been fully informed of the intended processing and has signified their agreement, while in a fit state of mind to do so and without pressure being exerted upon them. Consent obtained under duress or on the basis of misleading information will not be a valid basis for processing.
There must be some active communication between the parties to demonstrate active consent. Consent cannot be inferred from non-response to a communication. The Controller must be able to demonstrate that consent was obtained for the processing operation.
For sensitive data, explicit written consent of data subjects must be obtained unless an alternative legitimate basis for processing exists.
In most instances, consent to process personal and sensitive data is obtained routinely by Resource Management Solutions (North East) Limited using standard consent documents.
All Employees are responsible for ensuring that any personal data that Resource Management Solutions (North East) Limited holds and for which they are responsible, is kept securely and is not under any conditions disclosed to any third party unless that third party has been specifically authorised by Resource Management Solutions (North East) Limited to receive that information and has entered into a confidentiality agreement.
All personal data should be accessible only to those who need to use it, and access may only be granted in line with the Access Control Policy (All personal data should be treated with the highest security and must be kept:
- in a lockable room with controlled access; and/or
- in a locked drawer or filing cabinet; and/or
- if computerised, password protected in line with corporate requirements in the Access Control Policy; and/or
- stored on (removable) computer media which are encrypted.
Manual records may not be left where they can be accessed by unauthorised personnel and may not be removed from business premises without explicit authorisation. As soon as manual records are no longer required for day-to-day client support, they must be removed from secure archiving.
Personal data may only be deleted or disposed of in line with the Retention Policy. Manual records that have reached their retention date are to be shredded and disposed of as ‘confidential waste’.
Resource Management Solutions (North East) Limited must ensure that personal data is not disclosed to unauthorised third parties which includes family members, friends, government bodies, and in certain circumstances, the Police. All Employees should exercise caution when asked to disclose personal data held on another individual to a third party. It is important to bear in mind whether or not disclosure of the information is relevant to, and necessary for, the conduct of Resource Management Solutions (North East) Limited’s business.
All requests to provide data for one of these reasons must be supported by appropriate paperwork and all such disclosures must be specifically authorised by the Privacy Team/Senior Management.
Resource Management Solutions (North East) Limited shall not keep personal data in a form that permits identification of data subjects for longer a period than is necessary, in relation to the purpose(s) for which the data was originally collected.
Resource Management Solutions (North East) Limited may store data for longer periods if the personal data will be processed solely for archiving purposes in the statistical purposes, subject to the implementation of appropriate technical and organisational measures to safeguard the rights and freedoms of the data subject.
The retention period for each category of personal data will be set out in the Retention Policy along with the criteria used to determine this period including any statutory obligations Resource Management Solutions (North East) Limited has to retain the data.
Resource Management Solutions (North East) Limited’s data retention and data disposal procedures will apply in all cases.
Personal data must be disposed of securely in accordance with the sixth principle of the GDPR – processed in an appropriate manner to maintain security, thereby protecting the “rights and freedoms” of data subjects. Any disposal of data will be done in accordance with the secure data disposal procedure.
All exports of data from within the European Economic Area (EEA) to non-European Economic Area countries (referred to in the GDPR as ‘third countries’) are unlawful unless there is an appropriate “level of protection for the fundamental rights of the data subjects”.
The transfer of personal data outside of the EEA is prohibited unless one or more of the specified safeguards, or exceptions, apply:
- Adequacy Decision
- Privacy Shield (USA)
- Binding Corporate Rules
- Model Contract Clauses
Where a type of processing, in particular using new technologies and taking into account the nature, scope, context and purposes of the processing is likely to result in a high risk to the rights and freedoms of natural persons, Resource Management Solutions (North East) Limited shall, prior to the processing, carry out a DPIA of the impact of the envisaged processing operations on the protection of personal data. A single DPIA may address a set of similar processing operations that present similar high risks.
Where, as a result of a DPIA it is clear that Resource Management Solutions (North East) Limited is about to commence processing of personal data that could cause damage and/or distress to the data subjects, the decision as to whether or not Resource Management Solutions (North East) Limited may proceed must be escalated for review to the Privacy Team.
The Privacy Team shall, if there are significant concerns, either as to the potential damage or distress, or the quantity of data concerned, escalate the matter to the supervisory authority.
Appropriate controls will be applied to reduce the level of risk associated with processing individual data to an acceptable level in compliance with the GDPR.
Document Owner and Approval
The Privacy Team are the owners of this document and are responsible for ensuring that this policy document is reviewed in line with the review requirements stated above.
For further information please contact:
RMS Privacy Team, 3 Victoria Road, Darlington, Co Durham DL1 5SJ
Version 1: May 2018