The Commissioner for Personal Data Protection (Cypriot SA) fined LGS Handling Ltd, Louis Travel Ltd and Louis Aviation Ltd (Louis Group of Companies) for a total amount of EUR 82,000.00, concerning the lack of legal basis of “Bradford Factor” tool, which was used to score sick leaves of employees.
The Commissioner launched an investigation after a complaint was lodged by the employees’ trade union.
The reasoning behind Bradford's Factor automated system for scoring employees' sick leave was that short, frequent, and unplanned absences lead to a higher disorganising of the company rather than longer absences.
The date and the frequency of a sick leave relating to an individual, insofar as his or her identity is directly or indirectly disclosed, entail the processing of "special categories of personal data", as defined under Article 9(1) of the GDPR. Providing personal data to an automated system, scoring the data using 'Bradford Factor', and profiling individuals based on the results, is considered as processing of personal data; therefore such a processing operation needs to be in line with the principles defined in the GDPR.
The controller carried out an impact assessment of the processing operation, and it was submitted to the Commissioner for consultation during the investigation. The Commissioner was of the opinion that the controller failed to demonstrate through the impact assessment that its legitimate interest prevailed over the interests, rights and freedoms of its employees and consequently the mitigation of the risks was inadequate.
In the course of the investigation, we made use of the possibility to raise legal questions to the other EEA SAs via the so called Mutual assistance procedure and received input from 25 authorities. The replies received validated the absence of legal basis of the said processing and highlighted the necessity to regulate such issues with specific rules in line with article 88 of the GDPR.
After assessing all the elements gathered for the purpose of the investigation, the Commissioner decided that such processing operation had no legal basis. Primarily, it had not been established that the legitimate interest of the controller overrides the interests, rights and freedoms of its employees, which would enable the controller to rely on article 6(1)(f) of the GDPR. Likewise, none of the provisions of Article 9(2) of the GDPR would apply in this case, enabling the controller to process health data of employees.
The controller, as the employer, was entitled to supervise the frequency of sick leaves and the validity of sick leaves certificates. However, such a perquisite should not lead to mishandling and should be applied within the limits set by the relevant legislative framework.
Having established such unlawful conduct, the Commissioner ordered the controller to interrupt the processing and delete all data collected. Moreover, a fine of €70.000 was imposed to LGS Handling Ltd, a fine of €10.000 was imposed to Louis Travel Ltd and a fine of €2.000 was imposed to Louis Aviation Ltd, in relation to the infringements of articles 6(1) and 9 of the GDPR.
When deciding on the amount of the administrative fines, due regard was given to the number of data subjects (818 employees in total), the nature and duration of the infringements and the relevant turnover of the companies.
The full decision in Greek is available here
For further information, please contact the Cypriot SA: firstname.lastname@example.org