The controller or processor remains responsible for compliance with data protection law and must be able to demonstrate compliance. If the controller or processor makes decisions that are incompatible with the GDPR and the DPO's advice, the DPO should be given the possibility to make his or her dissenting opinion clear to those making the decisions.
Article 38(3) also requires that DPOs should ‘not be dismissed or penalised by the controller or the processor for performing [their] tasks’.
This requirement also strengthens the autonomy of DPOs and helps ensure that they act independently and enjoy sufficient protection in performing their data protection tasks.
Penalties are only prohibited under the GDPR if they are imposed as a result of the DPO carrying out his or her duties as a DPO. For example, a DPO may consider that a particular processing is likely to result in a high risk and advise the controller or the processor to carry out a data protection impact assessment but the controller or the processor does not agree with the DPO’s assessment. In such a situation, the DPO cannot be dismissed for providing this advice.
Penalties may take a variety of forms and may be direct or indirect. They could consist, for example, of absence or delay of promotion; prevention from career advancement; denial from benefits that other employees receive. It is not necessary that these penalties be actually carried out, a mere threat is sufficient as long as they are used to penalise the DPO on grounds related to his/her DPO activities.
As a normal management rule and as it would be the case for any other employee or contractor under, and subject to, applicable national contract or labour and criminal law, a DPO could still be dismissed legitimately for reasons other than for performing his or her tasks as a DPO (for instance, in case of theft, physical, psychological or sexual harassment or similar gross misconduct).
In this context it should be noted that the GDPR does not specify how and when a DPO can be dismissed or replaced by another person. However, the more stable a DPO’s contract is, and the more guarantees exist against unfair dismissal, the more likely they will be able to act in an independent manner. Therefore, the WP29 would welcome efforts by organisations to this effect.
The content herein is provided for your convenience and does not constitute legal advice.
Compliance Technology Solutions B.V. 2018