21 Feb 2020
The Cyprus Commissioner for personal data protection has fined three affiliated companies for the operation of an automated tool used to assess the employees’ sick leaves by scoring the data and profiling the employees based on the results.
After having received a complaint submitted by the Cyprus employees’ trade union, the Commissioner investigated the use of the “Bradford Factor” tool by the Companies. This automated tool aimed to score employees' sick leave. According to this system, short, frequent, and unplanned absences lead to a higher disorganizing of the companies rather than longer absences.
For further consultation of the Commissioner’s investigation, the Companies have conducted an impact assessment of this processing operation to demonstrate that their legitimate interest prevailed over the interests, rights and freedoms of their employees and thus the mitigation of the risks was adequate. However, the input received by 25 EU Supervisory Authorities via the mutual assistance procedure validated the absence of legal basis.
After having taken into consideration the results of the investigation, the Commissioner ruled that the use of this tool lacked legal basis since the companies failed to establish that their legitimate interests override their employees’ interests, rights and freedoms (art. 6.1 of the GDPR) and that they were allowed to process their employees’ health data (special categories of personal data) under art. 9 of GDPR.
The decision also noted that the Companies were allowed to monitor the frequency of sick leaves and the validity of sick leaves certificates but only within the context of the relevant legislative framework.
For all these GDPR infringements the Commissioner imposed the fine of €82.000 and ordered the Companies to stop the processing and delete the relevant data.