GDPR AN OVERVIEW OF THE REGULATIONS AND THEIR LIKELY IMPACT ON APPRENTICESHIPS

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1 GDPR AN OVERVIEW OF THE REGULATIONS AND THEIR LIKELY IMPACT ON APPRENTICESHIPS March 2018 Rebecca Rhodes, Senior Associate, UVAC

2 Agenda Aim and purpose Scope & implications for non-compliance and breach legal Obligations & Definitions special categories of personal data, lawful processing conditions, consent & individual rights, accountability & Governance Implications and actions for apprenticeship delivery: Policies & Privacy Statements Documentation, Declarations and signatures, Record keeping

3 In force from 25 th May What is Different? significant enhancements to existing legislation expect to handle existing activity differently More detailed and specific than in the DPA Places an emphasis on making privacy notices understandable and accessible Additional rights for individuals Harder lawful processing test e.g. Consent and Only OPT IN More detailed information in privacy notices If you have 250 or more employees, you must document all your processing activities Giving people greater control over how their data is used Responding to: Increased impact of data on day to day lives Increased matching of data across different sources Automation of decisions that affect citizens Considerable financial penalties - Bigger fines than the 500,000 DPA limit 2 tiers ; maximum 17 million or 4% of turnover Gives individuals the right to compensation of any material and/or non-material damages resulting from an infringement of the GDPR.

4 GDPR SCOPE Personal Data any information relating to an identifiable person who can be directly or indirectly identified in particular by reference to an identifier. Covers a wide range of personal identifiers to constitute personal data e.g. Name Identification number e.g. ULN location data online identifier Held in automated personal data and manual filing systems If it would be reasonable to expect you will use their information for an intended purpose, you are less likely to need to actively explain it to them The need to actively provide privacy information is strongest where: you are collecting sensitive information; the intended use is likely to be unexpected or objectionable; providing information or failing to do so, will have a significant effect on the individual; or the information will be shared with another organisation in a way that individuals would not expect. Sensitive personal data The GDPR refers to sensitive personal data as special categories of personal data (see Article 9). The special categories now specifically include genetic data, and biometric data where processed to uniquely identify an individual. Special category data is personal data which the GDPR says is more sensitive, and so needs more protection: race; ethnic origin; politics; religion; trade union membership; genetics; biometrics (where used for ID purposes); health; sex life; or sexual orientation.

5 Principles - Personal Data must be: processed lawfully, fairly and in a transparent manner processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed accurate and, where necessary, kept up to date;

6 Individual Rights The right to be informed concise, transparent, intelligible and easily accessible; written in clear and plain language, free of charge Include (see list) Controller, lawful basis and purpose, retention period, right to withdraw consent etc The right of access confirmation that their data is being processed; access to their personal data; and other supplementary information this largely corresponds to the information that should be provided in a privacy notice Free of charge (with exceptions ) & without delay (a month) The right to rectification The GDPR gives individuals the right to have personal data rectified. Personal data can be rectified if it is inaccurate or incomplete. If you have disclosed the personal data in question to others, you must usually inform them of the rectification The right to erasure also known as the right to be forgotten. Individuals can request deletion or removal of personal data where there is no compelling reason for continued processing, consent was withdrawn, data unlawfully processed. You can refuse e.g. on archiving purposes in the public interest like statistical history The right to restrict processing Individuals have a right to block or suppress processing of personal data. you are permitted to store the personal data, but not further process it. You can retain just enough information to ensure that the restriction is respected in future. The right to data portability allows individuals to obtain / reuse personal data for their own purposes across different services. It allows them to move, copy or transfer personal data easily from one IT environment to another in a safe and secure way, without hindrance to usability. The right to object Rights in relation to automated decision making and profiling. To processing based on legitimate interests or the performance of a task in the public interest/exercise of official authority (including profiling); and processing for purposes of scientific/historical research and statistics direct marketing (including profiling) - There are no exemptions or grounds to refuse here. You must stop processing personal data for direct marketing purposes as soon as you receive an objection. you must identify whether any of your processing falls under Article 22 and, if so, make sure that you:give individuals information about the processing; introduce simple ways for them to request human intervention or challenge a decision; carry out regular checks to make sure that your systems are working as intended.

7 Lawful Processing (art.6) Q1 on what basis are we collecting and processing our apprenticeship data? At least one of these must apply whenever you process personal data: (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party unless there is a good reason to protect the individual s personal data which overrides those legitimate interests. (NB: This cannot apply if you are a public authority processing data to perform your official tasks.)

8 Public Authority & the public task Lawful Processing Universities are likely to be classified as public authorities, so the public task basis is likely to apply to much of their processing. More guidance is due. A university that wants to process personal data may consider a variety of lawful bases depending on what it wants to do with the data. The university must consider its basis carefully: it is the controller s responsibility to be able to demonstrate which lawful basis applies to the particular processing purpose. must determine the lawful basis before starting to process personal data (important to get this right first time) You need therefore to keep a record of which basis you are relying on for each processing purpose, and a justification for why you believe it applies. Identify a clear basis in either statute or common law for the relevant task, function or power for which you are using the personal data. Update your privacy notice to include your lawful basis, and communicate this to individuals. Demonstrate you are carrying out a task in the public interest, or that you are exercising official authority. This must be Necessary ie. that the processing must be a targeted and proportionate way of achieving your purpose. You do not have a lawful basis for processing if there is another reasonable and less intrusive way to achieve the same result.

9 Legitimate Interests legitimate interests means you are taking on extra responsibility for considering and protecting people s rights and interests. Public authorities can only rely on legitimate interests if they are processing for a legitimate reason other than performing their tasks as a public authority. There are three elements to the legitimate interests basis. It helps to think of this as a threepart test. You need to: identify a legitimate interest; show that the processing is necessary to achieve it; and balance it against the individual s interests, rights and freedoms. The legitimate interests can be your own interests or the interests of third parties. They can include commercial interests, individual interests or broader societal benefits. You must balance your interests against the individual s. If they would not reasonably expect the processing, or if it would cause unjustified harm, their interests are likely to override yours. Most likely to be an appropriate basis where you use data in ways that people would reasonably expect and that have a minimal privacy impact. You can rely on legitimate interests for marketing activities if you can show that how you use people s data is proportionate, has a minimal privacy impact, and people would not be surprised or likely to object.

10 Consent GDPR sets a high standard for consent. The GDPR is clearer that an indication of consent must be unambiguous and involve a clear affirmative action - an Opt IN. It specifically bans pre-ticked opt-in boxes. It also requires individual ( granular ) consent options for distinct processing operations. Consent should be separate from other terms and conditions and should not generally be a precondition of signing up to a service. You must keep clear records to demonstrate consent. The GDPR gives a specific right to withdraw consent. You need to tell people about their right to withdraw, and offer them easy ways to withdraw consent at any time. You need to review existing consents and your consent mechanisms to check they meet the GDPR standard. If they do, there is no need to obtain fresh consent. But if you cannot offer a genuine choice, consent is not appropriate. If you would still process the personal data without consent, asking for consent is misleading and inherently unfair. Public authorities, employers and other organisations in a position of power may find it more difficult to show valid freely given consent.

11 Consent Checklist genuine consent should put individuals in control Asking for consent We have checked that consent is the most appropriate lawful basis for processing. We have made the request for consent prominent and separate from our terms and conditions. We ask people to positively opt in. We don t use pre-ticked boxes or any other type of default consent. We use clear, plain language that is easy to understand. We specify why we want the data and what we re going to do with it. We give individual ( granular ) options to consent separately to different purposes and types of processing. We name our organisation and any third party controllers who will be relying on the consent. We tell individuals they can withdraw their consent and publicise how they do this. We ensure that individuals can refuse to consent without detriment. We avoid making consent a precondition of a service. Recording consent We keep a record of when and how we got consent from the individual. We keep a record of exactly what they were told at the time. Managing consent We regularly review consents to check that the relationship, the processing and the purposes have not changed. We have processes in place to refresh consent at appropriate intervals, including any parental consents. We consider using privacy dashboards or other preference-management tools as a matter of good practice. We make it easy for individuals to withdraw their consent at any time, and publicise how to do so. We act on withdrawals of consent as soon as we can. We don t penalise individuals who wish to withdraw consent.

12 DATA & APPRENTICESHIPS

13 When Might Personal Data Be Used.. and by whom and why? Apprenticeship Matching Recruitment Sifting Getting the Unique Learner Number (from the Learner Records Service ) Enrolment and Admissions ILR / HESA Return End-point Assessment Change of Circumstance New Provider Redundancy New Employer New Line Manager Access to Student Services With Personal Tutors and Key T/L Staff Certification ESFA Satisfaction Surveys Audit Alumni

14 Delivering Apprenticeships - Questions Does your privacy notice that wrap around apprenticeships? What is the basis for Lawful Processing? : Multiple Statutory returns - public task or Legal Obligation Does / where does Reasonable expectation apply Legal Obligation? Is opt-in Consent needed anywhere? Do you need to have consent and if so do your forms and processes meet the GDPR requirements? SFA expect you: explicitly, because they refer to it in their own ESFA Privacy Notice, to refer apprentices to the ESFA ILR Privacy Notice to manage any subcontractors or other arrangements you have in place when sharing data with other organisations to be compliant with the law to have processes in place to identify and manage risks to act quickly in the event of a request to remove consent, or request to view personal data or in the event of a breach to inform apprentices of their individual rights

15 PRIVACY NOTICES

16 ESFA Privacy Notice

17 Apprenticeships ESFA ILR Privacy Notice As part of this service, individuals can apply for and be kept informed of apprenticeship opportunities. Personal data is processed to match registered candidate requirements to vacancies for apprenticeships, including for those employers or providers offering a guaranteed interview scheme. Learning providers may act on behalf of employers to sift and shortlist candidates for interview that meet the criteria set by the employer. This service also enables the ESFA and organisations funded to deliver the National Careers Service, and the Department for Works and Pensions (including Jobcentre Plus), and their employees or agents to search for apprenticeship vacancies and pass details to citizens and clients for the purpose of providing careers advice and guidance.

18 Privacy Notices - Content What data is collected Is the action taken reasonably to be expected Which systems this is held in and Why data is collected What you will do with the data Who it is shared with and why What are subcontractors doing on your behalf e.g. ILR What is the data process for apprenticeships? Who to contact if people want to see their data Explanation about the individuals rights Who to contact if they want to invoke any of the rights

19 Privacy Notice Requirements Identity and contact details of the controller and where applicable, the controller s representative) and the data protection officer Purpose of the processing and the legal basis for the processing The legitimate interests of the controller or third party, where applicable Categories of personal data collected Any recipient or categories of recipients of the personal data Details of transfers to third country and safeguards Retention period or criteria used to determine the retention period The existence of each of data subject s rights The right to withdraw consent at any time, where relevant, and how The right to lodge a complaint with a supervisory authority and how The source the personal data originates from and whether it came from publicly accessible sources Whether the provision of personal data part of a statutory or contractual requirement or obligation and possible consequences of failing to provide the personal data The existence of automated decision making, including profiling and information about how decisions are made, the significance and the consequences.

20 Privacy Notice Checklist

21 Privacy Notice Checklist

22 Action Plan Where to Reference and Include Information Check Scope Assessment reasonable expectation? Legal Basis? Review and update documents Employer Contract (Schedules) Commitment Statement Training Delivery Subcontracts Service e.g. ILR Contracts Staffing (contractor) contracts Apprentice Handbook Online Resources e.g. apprenticeship handbook online Face to Face Briefing Induction Tri-partite Review Staff Collection Processes and Checking Processes Consent and date given Governance Get the message out - Multi-layer approach

23 Questions Links ESFA Privacy Notice ESFA ILR Statement -Appendix F ICO Good and Bad Privacy Notice Examples ICO Preparing for GDPR 12 Step-Plan Please use the questions facility to add your feedback and comments about the webinar Slides and webcast will be posted on the UVAC website Any scenarios? - please me r.rhodes@uvac.ac.uk

24 GDPR AN OVERVIEW OF THE REGULATIONS AND THEIR LIKELY IMPACT ON APPRENTICESHIPS March 2017 Rebecca Rhodes, Senior Associate, UVAC

25 ICO 12 Step Preparation for GDPR Plan

26 Data Checklist 1. Documentation 1.1 Information you hold 2. Accountability and governance You have conducted an information audit to map data flows You have documented what personal data you hold, where it came from, who you share it with and what you do with it. 2.1 Accountability 2.2 Data Protection Officer (DPO) 2.3 Management Responsibility 2.4 Information risks and data protection impact assessments 2.5 Data Protection by Design 2.6 Training and awareness 2.7 The use of sub-processors 2.8 Operational base 2.9 Breach notification You have an appropriate data protection policy You have nominated a data protection lead or Data Protection Officer (DPO). Decision makers and key people demonstrate support for data protection legislation and promote a positive culture of data protection compliance across the business. You manages information risks in a structured way so that management understands the business impact of personal data related risks and manages them effectively. You have implemented appropriate technical and organisational measures to show you have considered and integrated data protection into your processing activities. You provides data protection awareness training for all staff. You sought prior written authorisation from the data controller before engaging the services of a sub-processor. If your business operates outside the EU, you have appointed a representative within the EU in writing. Your business has effective processes to identify, report, manage and resolve any personal data breaches.

27 Data Processor Checklist 3. Individual rights 3.1 Right of access Your business has a process to respond to a data controllers request for information (following an individuals' request to access their personal data). 3.2 Right to rectification and data quality 3.3 Right to erasure including retention and disposal 3.4 Right to restrict processing Your business has processes to ensure that the personal data you hold remains accurate and up to date. You have a process to routinely and securely dispose of personal data that is no longer required in line with agreed timescales as stated within your contract with the data controller. You have procedures to respond to a data controllers request to supress the processing of specific personal data. 3.5 Right of data portability You can respond to a request from the data controller for the supply of the personal data you process in an electronic format. 4. Data security 4.1 Security policy You have an information security policy supported by appropriate security measures.