Are Work Experience or Volunteer’s Employees?
This question has been asked more then once since the data protection and privacy legislation changed and eNaycH has looked at each client scenario and been able to justify that they are employees in the cases looked at.
The apparent confusion in part, is due to the fact that the Applied GDPR and Data Protection Act 2018 in general are missing the definition given under the old 1998 Act that a data processor was “anyone other than an employee of the data controller”. The only reference to any sort of definition of employee under the current legislation is the Data Protection Act 2018, Part 3, Chapter 1, Section 33 (2), Other definitions:
“Employee”, in relation to any person, includes an individual who holds a position (whether paid or unpaid) under the direction and control of that person. However Part 3 of the DPA 2018 is in reference to Law Enforcement Processing, so as neither of the clients were under that category it was important to be able to establish similar guidance under other provisions of the legislation.
Let’s look at each in turn.
A person or individual, usually in unpaid placements at an organisation while gaining an insight and understanding of learning about the world of work.
Q: Are they employees?
- a person who freely offers to take part in an enterprise or undertake a task or
- a person who works for an organisation without being paid.
In the case at hand definition ii. applied and the following does not take account of definition i.
Q: Are they employees or data processors as the client is a membership club?
In both of the cases above, the following legal definitions were applied having referred to the UK regulators guidance.
“member of staff” means any:
- worker within the meaning given in section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992;
- office holder; or
Looking back at section 296 and for this part references at 1. (a), eNaycH felt that the important part here was/is working “under contract”.
Conclusion and Application.
Individuals on work experience fall, in the instance under consideration, under section 1. (a) of section 296 of the Trace Union and Labour Relations (Consolidation) Act 1992 as an unpaid workers, working under the direction and a contract with the employer, in this case the Data Controller.
The volunteers in the clients case were all members of an organisation setup with a consitutional framework.
Such consitutional framework required certain members (non-office holders) to process personal data, on behalf of, and under the instruction of the data controller without any remuneration with the ‘contract’ to do so being the constitution of the organsation.
Conversely, they could also be unpaid workers, to be treated the same as employed positions within the member organisation,
In either scenario above, they were not acting as data processors.
Having established for each client that they could document their methodology in classifying those individual as employees under the legislation they were also advised that as such the should be included in any calculations used in the Data Protection (Charges and Information) Regulations 2018, and Documentation requirement under Article 30 of the Applied GDPR.
In reading this post it is important to remember that each case highlighted was looked at individually and that each situation is different and is in no way a “one size fits all”, but they may help in your own organisations decision process. It is not definitive legal advice, nor should it be construed as such.