A Pragmatic Compromise? The Role of Article 88 GDPR in Upholding Privacy in the Workplace

Abstract

The distinct challenges of data processing at work have led to long-standing calls for sector-specific regulation. This leaves the European legislature with a dilemma. While the distinct features of employee data processing give rise to novel issues that cannot adequately be addressed by an omnibus data protection regime, a combination of legal, political, and constitutional factors have hindered efforts towards adopting harmonised employment-specific legislation at the EU level. The ‘opening clause’ in Art. 88 GDPR aims to square this circle. It aims to ensure adequate and consistent protection of employees while also promoting regulatory diversity, respecting national peculiarities, and protecting Member State autonomy. This paper examines whether the opening clause has delivered on its promises. It argues that while the compromise has delivered on some of its promises in promoting diverse and innovative regulatory approaches, it also runs counter to the fundamental objectives of the GDPR itself by creating further fragmentation, legal uncertainty, and inconsistent implementation, interpretation, and enforcement of data protection rules

Keywords: data protection, employee data, GDPR, labour law, opening clause, privacy