Analyses the limitations on consent as a lawful basis for processing employee data under Art. 88 GDPR and WP29 Opinion 2/2017. Addresses power imbalance in employment relationships, identifies alternative lawful bases, and maps national derogations. Keywords: consent, employment, power imbalance, Art. 88, WP29, lawful basis, employee data, labour law.
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Analyses the limitations on consent as a lawful basis for processing employee data under Art. 88 GDPR and WP29 Opinion 2/2017. Addresses power imbalance in employment relationships, identifies alternative lawful bases, and maps national derogations. Keywords: consent, employment, power imbalance, Art. 88, WP29, lawful basis, employee data, labour law.
Consent is rarely a valid lawful basis for processing employee personal data under GDPR. The Article 29 Working Party's Opinion 2/2017 on data processing at work (WP249) and the EDPB's subsequent guidance establish a clear presumption against reliance on consent in the employment context. The rationale is straightforward: the inherent power imbalance between employer and employee means that consent cannot be "freely given" as required by Art. 4(11) GDPR when refusal or withdrawal of consent may result in real or perceived adverse consequences for the employee.
Art. 88(1) GDPR explicitly empowers Member States to provide more specific rules for processing in the employment context, and many have enacted legislation that further restricts or modifies the role of consent in employment data processing. This skill maps the consent prohibition landscape, identifies the narrow exceptions where consent may be valid, and provides a decision framework for selecting appropriate alternative lawful bases.
The Consent Problem in Employment
Art. 4(11) — Definition of Consent
Consent must be:
Freely given: The data subject must have a genuine and free choice and must be able to refuse or withdraw consent without detriment
Specific: Consent must be given for one or more specific purposes
Informed: The data subject must be informed about the controller's identity, the purpose, the data processed, the right to withdraw, and any automated decision-making
Unambiguous indication: A clear affirmative action is required
Why Consent Fails in Employment — WP29 Opinion 2/2017
The Article 29 Working Party stated in Section 5.1 of Opinion 2/2017:
"Employees are almost never in a position to freely give, refuse, or revoke consent, given the dependency that results from the employer/employee relationship. Given the imbalance of power, employees can only give free consent in exceptional circumstances, when no consequences at all are connected to acceptance or rejection of an offer."
Key factors that negate free consent in employment:
Factor
Explanation
Power imbalance
The employer controls terms of employment, pay, promotion, and termination
Perceived consequences
Even where no actual consequence follows refusal, employees reasonably fear adverse effects
Inability to refuse
Processing may be presented as mandatory regardless of the consent mechanism
Withdrawal difficulty
Employees may fear that withdrawing consent will be noted negatively
Granularity problems
Consent for multiple processing activities may be bundled, preventing genuine choice
Recital 43 — Imbalance of Power
Recital 43 GDPR states: "Consent should not provide a valid legal ground for the processing of personal data in a specific case where there is a clear imbalance between the data subject and the controller." The employer-employee relationship is the paradigmatic example of this imbalance.
EDPB Confirmation
The EDPB Guidelines 05/2020 on consent under Regulation 2016/679 (Section 3.1.1) reaffirmed that consent is "highly unlikely to be a legal basis for data processing at work, unless employees can refuse without adverse consequences."
Narrow Exceptions — When Consent May Be Valid
Despite the general presumption against consent in employment, there are limited scenarios where genuine free choice may exist:
Exception 1: Purely Voluntary Benefits
Where an employer offers an optional benefit and participation is genuinely voluntary with no consequence for declining:
Optional corporate wellness programme with health data processing
Voluntary employee discount programme requiring sharing of personal preferences
Optional employee photo directory
Conditions: The benefit must be genuinely optional, non-participation must have no negative consequences, and the employee must be able to withdraw at any time with immediate cessation of processing.
Atlas Manufacturing Group Example: Atlas offers an optional cycle-to-work scheme that requires processing of home address data for distance calculation. Employees who decline are not disadvantaged in any way. The DPO approved consent as the lawful basis with documented safeguards: the consent form explicitly states that non-participation has no employment consequences, and the scheme administrator is separate from line management.
Exception 2: Employee-Initiated Processing
Where the employee specifically requests processing for their own benefit:
Employee requests a reference letter (requiring disclosure of employment data to a third party)
Employee requests salary advance (requiring additional financial data processing)
Employee requests flexible working arrangement (requiring processing of personal circumstances)
Exception 3: Art. 9(2)(a) Explicit Consent for Special Category Data
In limited circumstances, explicit consent under Art. 9(2)(a) may be appropriate for special category data where:
No other Art. 9(2) condition applies
The processing is genuinely in the employee's interest
Refusal has absolutely no adverse consequence
National law does not prohibit or restrict consent for this purpose
Example: An employee voluntarily discloses a disability to access workplace adjustments, and no legal obligation to process this data exists under national disability discrimination law.
Alternative Lawful Bases for Employment Processing
Art. 6(1)(b) — Performance of the Employment Contract
Scope: Processing necessary for the performance of the contract of employment.
Processing Activity
Art. 6(1)(b) Applicability
Payroll processing
Yes — directly necessary for contract performance
Work scheduling and shift management
Yes — necessary for organising contractual duties
Performance management against contractual objectives
Yes — contractual performance evaluation
Absence management
Yes — managing contractual leave entitlements
Provision of contractual benefits (pension, insurance)
Yes — contractual obligation
Background checks beyond contractual requirements
No — extends beyond contract necessity
Post-termination data retention beyond legal requirements
No — contract has ended
Limitation: The processing must be genuinely necessary for the contract, not merely useful or convenient. The EDPB has emphasised that "necessary" must be interpreted strictly — what is necessary is determined by the nature of the contract, not the employer's business model.
Art. 6(1)(c) — Legal Obligation
Scope: Processing required by law, including employment law, tax law, social security law, and health and safety law.
Processing Activity
Legal Obligation
Tax withholding and reporting
National tax law (e.g., Income Tax Act, PAYE regulations)
Social security contributions
National social security legislation
Working time recording
EU Working Time Directive 2003/88/EC, as confirmed in CCOO v Deutsche Bank (CJEU, C-55/18, 2019)
Health and safety incident reporting
Framework Directive 89/391/EEC
Right-to-work verification
National immigration law
Gender pay gap reporting (UK)
Equality Act 2010 (Gender Pay Gap Information) Regulations 2017
Whistleblower channel operation
EU Whistleblowing Directive 2019/1937
Art. 6(1)(f) — Legitimate Interest
Scope: Processing necessary for the legitimate interests of the employer, provided these interests are not overridden by the interests, rights, or freedoms of the employee.
Three-part legitimate interest test (Art. 6(1)(f) + WP217):
Purpose test: Is there a legitimate interest? (Business security, fraud prevention, IT security, organisational efficiency)
Necessity test: Is the processing necessary for that interest, or could the aim be achieved by less intrusive means?
Balancing test: Do the employer's interests override the employees' fundamental rights? Consider:
The nature of the data (sensitive vs. non-sensitive)
The reasonable expectations of employees
The impact on the employee
The safeguards in place
Processing Activity
Legitimate Interest Analysis
CCTV in production areas for safety
Likely valid — safety interest is strong, cameras in work areas expected
Email metadata monitoring for security
Likely valid if limited to metadata and employees are informed
Productivity scoring from monitoring data
Unlikely valid — significant impact on employee autonomy, less intrusive alternatives available
Social media screening of job applicants
Questionable — high intrusiveness, limited to publicly available professional profiles if at all
Art. 6(1)(e) — Public Interest (Public Sector Employers)
For public sector employers, processing may be based on the performance of a task carried out in the public interest or in the exercise of official authority.
Art. 88 — National Derogations
Art. 88(1) permits Member States to provide more specific rules for processing in the employment context by law or collective agreements. Key national implementations:
Germany — Section 26 BDSG
Employee data may be processed if necessary for the employment decision, performance of the employment contract, exercise or enjoyment of rights from collective agreements, or termination of employment
Consent in the employment context is valid only if the employee derives a legal or economic advantage or the employer and employee pursue the same interest
Consent must be in writing (unless electronic consent is appropriate due to circumstances)
The works council (Betriebsrat) has co-determination rights under Section 87(1)(6) BetrVG for any technical monitoring of employee behaviour
France — Labour Code (Code du travail)
Art. L.1121-1: No employer may restrict the rights of individuals or individual and collective freedoms unless justified by the nature of the task and proportionate to the aim pursued
Art. L.1222-4: No information concerning an employee personally may be collected by a device that has not been previously brought to their attention
CNIL Deliberation No. 2019-160: Specific requirements for employee monitoring transparency and proportionality
Netherlands — UAVG (Implementing Act GDPR)
Art. 30 UAVG: Employee consent for processing by the employer is deemed not freely given due to the dependency relationship, unless the processing is clearly in the interest of the employee
Works council (ondernemingsraad) has consent rights under Art. 27(1)(k) and (l) WOR for personal data processing decisions
Spain — Organic Law 3/2018 (LOPDGDD)
Art. 87-91: Specific provisions for digital rights in the employment context
Art. 87: Right to digital privacy at work
Art. 89: Right to digital privacy in relation to video surveillance and sound recording at the workplace — employees must be informed of monitoring in advance
Art. 90: Right to digital privacy in the context of geolocation at work
Italy — Workers' Statute (Legge 300/1970) and Jobs Act (D.Lgs. 151/2015)
Art. 4: Remote monitoring of employees is permitted only for organisational, production, safety, or asset protection purposes, and only with trade union agreement or labour inspectorate authorisation
Individual performance monitoring through remote control systems remains prohibited
Decision Framework: Selecting the Lawful Basis
START: Employer needs to process employee personal data
│
├─ Is the processing required by a specific law or regulation?
│ ├─ YES → Art. 6(1)(c) — Legal Obligation
│ └─ NO → Continue
│
├─ Is the processing necessary for performance of the employment contract?
│ ├─ YES → Art. 6(1)(b) — Contract Performance
│ │ └─ Apply strict necessity test: would the contract fail without this processing?
│ └─ NO → Continue
│
├─ Is the employer a public authority processing for a public task?
│ ├─ YES → Art. 6(1)(e) — Public Interest
│ └─ NO → Continue
│
├─ Does the employer have a legitimate interest?
│ ├─ YES → Conduct three-part LIA under Art. 6(1)(f)
│ │ ├─ Balancing test favours employer → Art. 6(1)(f) — Legitimate Interest
│ │ └─ Balancing test favours employee → Processing cannot proceed on this basis
│ └─ NO → Continue
│
├─ Is the processing genuinely voluntary with zero employment consequences?
│ ├─ YES → Art. 6(1)(a) — Consent (with documented safeguards)
│ │ └─ Document: (1) no consequence for refusal, (2) easy withdrawal, (3) separate from employment terms
│ └─ NO → Consent is not valid. Reassess whether processing is necessary at all.
│
└─ END: If no lawful basis can be identified, the processing must not proceed.
Common Compliance Failures
Failure
Risk
Remediation
Using consent as default lawful basis for all employment processing
Audit all employment processing and reassign to appropriate lawful basis
Bundling consent for multiple purposes in one form
Consent is not specific per Art. 4(11)
Separate consent requests with granular choices
No mechanism for consent withdrawal
Consent invalid from inception
Implement withdrawal mechanism and cease processing on withdrawal
Presenting consent as mandatory during onboarding
Consent not freely given
Separate mandatory processing (with alternative lawful basis) from optional processing
Ignoring national Art. 88 derogations
Non-compliance with national law
Map all employment processing to applicable national requirements
Enforcement Precedents
Authority
Case
Fine/Outcome
Issue
Hellenic DPA
Decision 26/2019
EUR 150,000
Employer relied on consent for employee CCTV monitoring — consent invalid due to power imbalance
Austrian DPA
DSB-D123.270/0009-DSB/2018
EUR 4,800,000 (reduced on appeal)
Systematic employee monitoring based on invalid consent
ICO (UK)
Mermaids Charity, 2023
Enforcement notice
Processing of employee special category data without valid lawful basis
CNIL (France)
Deliberation SAN-2022-018
EUR 600,000
Employer collected excessive employee data, purporting to rely on consent
LfDI Baden-Württemberg
2020
EUR 35,258,707.95
Employer processed employee health data based on consent that was not freely given (H&M case, contributed to by German Federal Commissioner)
Integration Points
Employee Monitoring DPIA: DPIAs for monitoring must confirm that consent is not relied upon (see employee-monitoring-dpia skill).
Employee Biometric Data: Biometric processing requires Art. 9 condition — consent validity is even more constrained (see employee-biometric-data skill).
Employee Health Data: Health data processing has specific Art. 9(2)(b) and (h) alternatives to consent (see employee-health-data skill).
BYOD Privacy Policy: BYOD arrangements may appear to require consent but often have alternative bases (see byod-privacy-policy skill).
