Legal aspects of implementation
The Scheme expressly acknowledges that its implementation by each signatory is subject to applicable legislation and regulations
The Scheme is designed to be applied by all humanitarian and non-humanitarian agencies worldwide, including international and local NGOs, UN agencies and private contractors, and as such does not rely on UN legal immunities or other mechanisms.
The European General Data Protection Regulation (GDPR) has been specifically taken into account in development of the scheme. See the Data Protection section for details.
Disclaimer: The materials available at this website are for information purposes only and not for the purpose of providing legal advice. Agencies implementing the scheme are advised to check specifics with their legal advisor.
Coming soon…top tips on how to navigate legal side of implementation:
obtaining legal advice,
data protection - GDPR and other regulations,
risk perception.
Legal frameworks
The table below summarises the outline legal situation, jurisdiction by jurisdiction, on implementing the scheme. Where developments in regulation, new case law or specific advice adds new clarity, this table will be updated.
| Jurisdiction | Summary of legal issues identified |
|---|---|
| Australia | None Known |
| Austria | None Known (but may use a similar system of employment certificates as Germany) |
| Bangladesh | None Known |
| Belgium | None Known |
| Burkina Faso | None Known |
| Cameroon | None Known |
| Canada | None Known |
| CAR | None Known |
| Chad | None Known |
| Columbia | None Known |
| Czech Republic | None Known |
| Denmark | Consent is likely required due to data protection concerns. Misconduct can be disclosed with individual’s consent, but likely can’t disclose what disciplinary sanction was imposed |
| DRC | None Known |
| El Salvador | None Known |
| Ethiopia | None Known |
| European Union* Note that there is no EU jurisdiction as such - Rather the GDPR applies directly in Members States, and becomes the law of the Member State, but this provides a summary of a cross-EU issue. | None Known: GDPR data protections are likely covered by relevant definitions under GDPR of ‘specified, explicit and legitimate purposes’ and ‘adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed’ though this has not been tested in court. Also supported by OECD DAC recommendation |
| Finland | None Known |
| France | None Known |
| Germany | Need to use adapted Statement of conduct that is passed on through the employee to implement: Requirements under Scheme are inconsistent with German data protection and labour law and respondents will need to use 'I am unable' options on the statement of conduct. German organisations under section 26 (1) BDSG are not permitted to provide information on a former staff member directly to another employer. Under Section 109 of the German Industrial Code (“Gewerbeordnung”) they are required to provide an „Arbeitszeugnis“ (certificate of employment) to the former employee, who in turn then has to provide it to future employers. These may be 'plain', merely describing the role, or 'qualified' providing detail of performance. This has to state the facts, but the language must be benevolent (“wohlwollend”) to the employee and 'shall not hinder his further professional advancement without good cause' so is unlikely to include details on misconduct, unless a court/tribunal found that preventing hire of abusers constitutes good cause. It may however include coded language suggesting less-than-perfect behaviour, which is read as a red flag by German employers familiar with the practice. New employers are able to refuse to hire an employee who is unable to provide their „Arbeitszeugnis“. Consent to provide information could not be obtained in advance in a generalized manner, and could not override the BDSG. |
| Ghana | None Known |
| Greece | None Known |
| Haiti | None Known |
| Honduras | None Known |
| Indonesia | None Known |
| Iraq | None Known |
| Ireland | None Known |
| Italy | None Known |
| Japan | None Known |
| Jordan | None Known |
| Kenya | None Known |
| Lebanon | None Known |
| Luxembourg | None Known |
| Malawi | None Known |
| Mali | None Known |
| Mozambique | None Known |
| Myanmar | None Known |
| Nepal/Bhutan | None Known |
| Netherlands | Consent Required: Data protection may be a concern, but may be able to disclose under Scheme with individual’s consent. Works Council would need to authorise. |
| New Zealand | None Known |
| Niger | None Known |
| Norway | None Known |
| Pakistan | None Known |
| Palestine (Gaza) | None Known |
| Philippines | Potential concerns around the Data Privacy regulations, may require candidates consent in advance of asking. |
| Somalia | None Known |
| South Sudan | None Known |
| Spain | Consent Required: Data protection law a concern; but could disclose in accordance with the Scheme with individual’s consent. |
| Sudan | None Known |
| Sweden | None Known |
| Switzerland | None Known (but uses a similar system of employment certificates as Germany) |
| Syria | None Known |
| Tanzania | None Known |
| Uganda | None Known |
| United Kingdom | None Known |
| United States | None Known: Currently seeking advice state-by-state given differences in employment law |
| Yemen | None Known |
| Zambia | None Known |
| Zimbabwe | None Known |