5 September 2002

Eversheds e80
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The e-news service from Eversheds - Business Lawyers in Europe

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Data Protection Code: Part II

Yesterday saw the publication of the Part II of Data Protection Act Code
of Practice dealing with employment records. Part II "Records
Management", which has taken a significant length of time to be drafted,
includes guidance on dealing with employment records throughout the
relationship with employees and workers. The Code includes some
interesting insight into the views of the Information Commissioner
regarding the gathering, release and use of information. Whilst the 110
page document may seem a daunting read it is recommended that
organisations do refer to the Code when dealing with issues such as access to or disclosure of employee records and details.

The recurring theme of the Code is the need to inform workers of the
information being held and to use the information only for those purposes of which the workers are aware. The need to ensure security and that the data is not out of date or excessive is reiterated throughout the Code. One of the most contentious suggestions, that all personnel files should be released to employees has now been reduced to the yearly checking of personal details.

One of the most commonly asked questions regarding the Code relates to workers' access to records, including records which identify data provided by third parties. This would include situations where a reference from the former employer is received and also the collection of evidence in disciplinary or harassment investigations.

References - Whilst it is clear that we do not have to give access to
references we ourselves have created it appears that the Information
Commissioner is of the opinion that received references should be
released to the worker to whom it relates if the worker requests it. Even
if given on a strictly confidential basis if it could harm the worker then
it should also be released. The net result of this is that employers will
be even more cautious in giving references which are anything other than
factual.

Interview Notes - Whilst access should normally be given the Commissioner does concede that there may be a special case for not giving access if it would allow a worker accused of bullying or harassment to find out the identity of his or her accuser. The limitation on using information only for the purposes you obtained it is mentioned in respect of disciplinary or grievance hearings. Employers should not use information if that use is incompatible with the original reasons for processing it or if it is disproportionate with the seriousness of the matter under investigation. This will give room for objection to company data being used if inappropriate use.

Release of Information to Third Parties - Useful guidance is given on the
provision of data in merger and acquisition situations emphasising the
need to anonymise information and maintain security over such detail.
Similar restrictions are advised regarding release to other third parties
such as insurers, pension providers and trade unions

It is clear that employers will need to spend sometime prioritising the
maintenance of up to date and accurate employment records and ensure that this task is ongoing.

Paula Rome
PaulaRome@eversheds.com
www.eversheds.com
Tel: 029 2047 7565

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