To help businesses to comply with the Data Protection Act when providing information under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE), the Information Commissioner’s Office has published new guidance to help. TUPE requires that certain information is provided to the new employer before the transfer takes place. These details include:-
· Name and age of employees who will transfer.
· Contracts of employment or written details of employment such as rates of pay, hours of work, holiday entitlements, etc.
· Information about any relevant collective agreements.
· Details of disciplinary action taken against an employee in the last 2 years.
· Details of any grievance raised by an employee in the last 2 years.
· Details of any legal action brought against the employer in the last to years and/or information about any potential legal action.
Employers must provide this information at least 2 weeks before the transfer is completed. Employers face penalties if they do not disclose the required information. The Data Protection Act does not prevent the transfer of this information as it is a requirement by law. Employees’ do not need to consent to the transfer of employment information if it is necessary for the purpose of TUPE. However, both former and new employers must comply with the Data Protection Act, eg by ensuring date is up to date and secure, when handling the information.
The former employer can keep information about their former employees where there is a justifiable need, eg to deal with any liabilities. The former employer can only keep the information for as long as necessary and should delete or securely destroy any information they do not need to keep.
If you have any queries about TUPE, please contact either Ashley Hunt or Vaishali Thakerar on 0116 212 1000.
