Can you be GDPR compliant without testing your employees?
Posted by John Kleeman
The GDPR is a new extra-territorial, data protection law which imposes obligations on anyone who processes personal data on European residents. It impacts companies with employees in Europe, awarding bodies and test publishers who test candidates in Europe, universities and colleges with students in Europe and many others. Many North American and other non-European organizations will need to comply.
See my earlier post How to use assessments for GDPR compliance for an introduction to GDPR. The question this blog post addresses is whether it’s practical for a large organization to be compliant with the GDPR without giving tests and assessments to their employees?
I’d argue that for most organizations with 100s or 1000s of employees, you will need to test your employees on your policies and procedures for data protection and the GDPR. Putting it simply, if you don’t and your people make mistakes, fines are likely to be higher.
Here are four things the GDPR law says (I’ve paraphrased the language and linked to the full text for those interested):
1. Organizations must take steps to ensure that everyone who works for them only processes personal data based on proper instructions. (Article 32.4)
2. Organizations must conduct awareness-raising and training of staff who process personal data (Article 39.1). This is extended to include “monitoring training” for some organizations in Article 47.2.
3. Organizations must put in place risk-based security measures to ensure confidentiality and integrity and must regularly test, assess and evaluate the effectiveness of these measures. (Article 32.1)
4. If you don’t follow the rules, you could be fined up to 20 million Euros or 4% of turnover. How well you’ve implemented the measures in article 32 (i.e. including those above) will impact how big these fines might be. (Article 83.2d)
So let’s join up the dots.
Firstly, a large company has to ensure that everyone who works for it only processes data based on proper instructions. Since the nature of personal data, processing and instructions each have particular meanings, this needs training to help people understand. You could just train and not test, but given that the concepts are not simple, it would seem sensible to test or otherwise check their understanding.
A company is required to train its employees under Article 39. But the requirement in Article 32 is for most companies stronger. For most large organizations the risk of employees making mistakes and the risk of insider threat to confidentiality and integrity is considerable. So you have to put in place training and other security measures to reduce this risk. Given that you have to regularly assess and evaluate the effectiveness of these measures, it seems hard to envisage an efficient way of doing this without testing your personnel. Delivering regular online tests or quizzes to your employees is the obvious way to check that training has been effective and your people know, understand and can apply your processes and procedures.
Lastly, imagine your company makes a mistake and one of your employees causes a breach of personal data or commits another infraction under the GDPR? How are you going to show that you took all the steps you could to minimize the risk? An obvious question is whether you did your best to train that employee in good practice and in your processes and procedures? If you didn’t train, it’s hard to argue that you took the proper steps to be compliant. But even if you trained, a regulator will ask you how you are evaluating the effectiveness of your training. As a regulator in another context has stated:
“”where staff understanding has not been tested, it is hard for firms to judge how well the relevant training has been absorbed”
So yes, you can imagine a way in which a large company might manage to be compliant with the GDPR without testing employees. There are other ways of checking understanding, for example 1:1 interviews, but they are very time consuming and hard to roll out in time for May 2018. Or you may be lucky and have personnel who don’t make mistakes! But for most of us, testing our employees on knowledge of our processes and procedures under the GDPR will be wise.
Questionmark OnDemand is a trustable, easy to use and easy to deploy system for creating and delivering compliance tests and assessments to your personnel. For more information on using assessments to help ensure GDPR compliance visit this page of our website or register for our upcoming webinar on 29 June.