Be Aware - January 2022

Can an employer use its staff’s biometric data?

Caution must be exercised following the latest recommendation on biometric data processing dated 1 December 2021 of the Data Protection Authority

It’s not uncommon to use biometric data processing (for example, in the context of access control systems for premises or computers based on fingerprints, on a facial recognition system, or on the basis of an iris scan). But is this legal?

The GDPR defines biometric data as “personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data” (Article 4, 14).

Since the adoption of the GDPR, biometric data is now considered to be a special data category. Processing such data risks harming the fundamental rights and freedoms of the individuals concerned. Therefore, it is prohibited in principle.

The GDPR lists certain exceptions, however. Among those most used in practice are: express consent of the individual concerned and reasons of substantial public interest.

These exceptions have caught the attention of the Data Protection Authority in its recommendations on biometric data processing issued in recent years, the last of which is dated 1 December 2021.

In principle, biometric data processing can be legitimised by express valid consent. How does this work in the context of an employment contract? According to the Data Protection Authority (even though, according to us, it is not necessarily prohibited under the GDPR), consent cannot be validly given under an employment contract. The relationship of subordination and the imbalance it causes make consent impossible, according to the Data Protection Authority.

What about public interest? This exception is often used when it’s impossible to resort to the exception of consent (due to the power balance between the controller and the individual concerned). However, in order to rely on reasons of substantial public interest, EU Law or the law of a Member State need to expressly acknowledge this interest and authorise biometric data processing in this context. However, in Belgium (unlike some of neighbouring countries), there is no general legal basis authorising biometric data processing in the context of unique identification or single authentication of an individual for security purposes (the existing legal provisions only cover the electronic identity card and the passport). According to the Data Protection Authority, reasons of substantial public interest cannot currently justify biometric data processing. Faced with this legal vacuum, according to the Data Protection Authority, the Belgian legislator will pass legislation in this area if it wants to (continue to) authorise such use of biometric data.

The Authority also points out that, even in the event of lawful processing, the other principles provided for by the GDPR in this area will apply, particularly with regard to purpose, proportionality, security of processing, retention limitation and transparency. Hence, not only does the biometric data processing need to be lawful, but it must also be necessary with regard to the purposes of the processing or, in other words, there should be no other, more privacy-friendly means to achieve the same purpose.

According to the Data Protection Authority, biometric data processing that is carried out generally lacks a legal basis.

Frédérique Gillet

Stand-by duty: Court of Justice clarifies concept of working time

For many activities it is impossible to estimate the amount of work beforehand, and hence, how many workers will be needed. Out of sheer necessity, a stand-by system is used in which the worker is free in principle but must nevertheless remain available to start work in the event of a call-out.

The question arises, however, if the mere availability is to be considered working time. After all, the concept of “working time” is not limited to the time actually worked but consists of “any period during which the worker is at the employer’s disposal.” If the entire period during which someone is on call is to be considered working time, this will have far-reaching consequences, on the one hand because the number of hours to be worked would drop dramatically, and on the other hand, financially, if the normal wage would also be payable for the time that someone is merely on call.

The Court of Justice already ruled in its judgment of 3 October 2000 (Simap) that stand-by duty where the worker is required to be physically present at the place of work (so-called sleep-in duty in hospitals), is to be considered working time. After all, the fact that a room is made available to a worker, where the worker can even sleep, if necessary, does not detract from the fact that the freedom of the worker is limited by the compulsory presence.

Since then, in case-law the majority view has been that stand-by duty without compulsory presence at work is not working time. However, in its judgment of 21 February 2018 (Matzak), the Court of Justice ruled that stand-by duty where the worker is allowed to stay at home can also be working time. This judgment admittedly concerned exceptional facts, as it concerned a firefighter who had to be at the station in full uniform within eight minutes of a call-out.

However, this case-law left a grey area, as it was difficult to determine the tipping point at which the restriction of the worker’s freedom during stand-by duty was such that the complete stand-by duty must be considered working time.

The Court of Justice clarified this in its judgment of C-214/20 (Dublin City Council). Once again, the case concerned a firefighter’s stand-by duty. Although, in case of a call-out, the individual concerned had to be present at the station in full uniform with ten minutes’ notice, a pool system was in place, meaning that the individual concerned only had to respond to 75% of call-outs. Hence, for 25% of call-outs at the most he could decide to refuse the call-out because it was inconvenient. In addition, it was expressly allowed to have a full-time job while on-call duty.

The Court reiterated its well-settled case-law which held that working time is defined as time when the worker’s obligations are such that they objectively and significantly impact the ability of the individual concerned to fill and devote their time to leisure interests. Conversely, it is not working time when the worker’s obligations allow them to manage and devote time to non-professional interests without much hassle. This must be assessed based on the global situation, including response time, number of call-outs, time needed after a call-out (eg to put away the equipment) etc.

The fact that the worker was allowed to refuse a quarter of call-outs and was even allowed to work for another employer was decisive in the Court of Justice’s ruling that the stand-by duty did not qualify as working time.

Therefore, for companies using stand-by arrangements it is recommended to organise the system in such a way that several workers are on call at the same time and that a worker on call is allowed to refuse a substantial part of call-outs. That way, the continuity of service does not depend on one individual, and it creates a strong argument not to consider stand-by duty as working time. However, this remains to be assessed based on the global situation. It is admittedly a strong argument, but not necessarily a decisive one.

Even stand-by duty with very short response times does not qualify as working time in some cases, provided that the worker is provided sufficient freedom in other aspects.

DLA Piper employment publications of recent months

• “Peut-on dormir sur le lieu de travail? ”, Trends Tendance, Angela Broux and Laurent De Surgeloose

• “Un ordinateur est-il un avantage? ”, Trends Tendance, Frédérique Gillet 

• “Reform of the Belgian tax regime? ”
  
  The Belgian Parliament has recently approved a bill which reforms the existing tax regime for expats who are temporarily assigned to Belgium by a foreign employer or recruited from abroad by a Belgian employer. The bill entered into effect on 1 January 2022 and the changes will, in principle, be effective as of that day.
  
  While the reform aims to simplify the existing regime and provide more legal certainty to taxpayers, it is not necessarily more beneficial. Moreover, the reform not only affects new assignments or employment of expats as of 1 January 2022, but also assignments or employment that took place in the past. Companies that are currently employing expats who benefit from the existing special tax regime should therefore assess on a case-by-case basis whether it is favourable for them and their expats to opt in to the new set of rules, or whether it is more beneficial to remain covered by the current system, which will be phased out over a period of two years.
  
  If you want to know more about this, read the article by our colleagues Philippe Hinnekens and Alexander Bostoen.