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The Information Commissioner's Office (ICO) issued guidance this month re TUPE and Data Protection, confirming that an employee's consent is not required to transfer their employment record to a new employer under TUPE. The guidance aims to help data controllers understand their obligations and also provides a list of good practice tips
The Data Protection Act 1998 (DPA 1998) is based around eight principles of good information handling which give people certain rights in relation to their personal information, and place obligations on organisations responsible for processing it. The ICO guidance is part of a series which aims to help data controllers understand their obligations and promote good practice. It explains what organisations need to do to comply with the DPA 1998 when providing information about employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE).
TUPE is intended to preserve the terms and conditions of an employee's employment when a business or undertaking is transferred to a new employer. It requires new employers to be provided with information about their new workforce in advance of any transfer or change in service provision. Disclosures are permitted under the DPA 1998 as they are required by law. However, parties must still comply with data protection principles when handling this information.
Information given to new employer
The guidance says TUPE requires the following information to be passed on to the new employer at least 28 days before the transfer of employment:
identity and age of employees being transferred
information contained in their statements of employment particulars, eg statement of pay, hours of work, holiday etc
information about any collective agreements
details of any disciplinary action in the last two years
details of any grievance action raised by an employee in the last two years
details of any legal action brought against the company by an employee in the last two years
The guidance also provides information on whether employment records can be given to the new employer. It says a large portion of the employment record is likely to be required, and that the employee's consent is not needed to transfer this. It advises new employers to consider whether they require all the personal information in the files, and to delete or destroy unnecessary information.
Former employer's position
The former employer is permitted to keep some personal information about employees who have been transferred. This will normally be to deal with any liabilities, and the former employer should only keep it so long as is necessary, and delete or securely destroy any information they do not need to keep.
Good practice tips
The guidance also provides a list of good practice tips. These include:
agreeing what information is to be transferred well before the transfer takes place
telling employees their information is being passed to the new employer
considering whether any personal information can be anonymised before providing it if not required under TUPE
If you are a LexisPSL Subscriber, click the link below for further information on TUPE and insolvency:
Insolvency and transfers (Subscriber access only)
Not a subscriber? Find out more about how LexisPSL can help you.
Eleanor Stephens, member of the Lexis®PSL Restructuring & Insolvency team.
0330 161 1234