GIBRALTAR Law and Practice Contributed by: Nick Cruz, Marc X Ellul, Arcelia María Hernández-Cordero and Kayleigh-Anne Revagliatte, Ellul & Cruz
4. Foreign Workers 4.1 Limitations on Foreign Workers
It may also be possible to sue the new employer for inducing a breach of contract or breach of confidence. 2.2 Non-Solicits See 2.1 Non-Competes . 3. Data Privacy 3.1 Data Privacy Law and Employment Pursuant to the Gibraltar General Data Protection Regulation (GDPR), which came into force on 25 May 2018, data collected, processed, stored and accessed should be restricted to the minimum for each speci - fied purpose and only be kept for as long as nec - essary. Current legislation in Gibraltar maintains the data protection standards that applied in Gibraltar as a result of EU law (ie, the EU General Data Protection Regulation 2016/679 and the EU Law Enforcement Directive 2016/680) prior to Brexit and the end of the transition period. Individuals, including employees, have the right to be informed of how their data will be used. They can access, rectify, erase and object to data being held or processed. They also have the new right of port - ability – that is, the data can be transferred to another organisation on request. Employers are not able to process data until they show that a legitimate interest or legal basis outweighs the interests or rights of the employee. Any data held on paper or electronically should be available to the indi - vidual electronically – free of charge and in a com - monly used format – within one month. Legal Basis In the employment context, a “legal basis” is needed to justify the processing of each data category. A legal basis can be a statutory requirement, such as record - ing for tax purposes, necessary for a legal obligation, or for the performance of the contract (eg, paying the individual or ensuring work is performed). For much employee data, the legal basis will be a “legitimate interest” – for example, capturing data to improve workforce performance or to respond to a dispute.
The Employment Regulations 1994 (the “Employment Regulations”) provide that it is an offence to engage a worker other than an entitled worker, as defined in the Employment Regulations, without having first obtained a permit in respect of that worker. “Entitled workers” are defined in Regulation 6 (4) and include: • European Economic Area (EEA) nationals and their • persons entitled to seek and take up employment in Gibraltar by virtue of their nationality or resi- dency; and • persons falling within Section 14 (1) of the Immigra - tion, Asylum and Refugee Act, etc. family members; • Swiss nationals; All other workers must have a work permit to work in Gibraltar. It is as yet unclear what the position of EU workers will be in the future, given that the UK and Gibraltar left the EU on 31 December 2020. Currently, discussions between the Gibraltar, Span - ish and UK governments have meant that there is an expectation that “a Gibraltar solution” will be found that will accommodate the parties’ desire for Gibraltar to enters the Schengen area and for free movement to prevail. This is currently the subject of a treaty nego - tiation between the EU and the UK. In the meantime, the treatment of previously “entitled workers” remains the same. Work Permit Applications Where applicable, a work permit must be obtained before employment commences and will only be issued for 12 months at a time. The application is made by the employer to the Director of Employment. The employer must lodge a deposit with the Director of Employment for the amount that would be required to repatriate the employee on termination. Applications are usually processed within two to three weeks. Failure to obtain a work permit is subject to financial penalties. Non-EU nationals require residen - cy permits if they wish to reside in Gibraltar. A person
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