The Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended by the "Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014, known as TUPE, protect the right of employees' rights when the organisation they work for transfers to a new employer.
Whilst the principles make quite a lot of sense – why should employees lose their jobs, continuity of service or be switched to less favourable terms because their employer changes – each individual situation tends to have its own complications.
Being the transferee (the employer receiving the transferring employees) can be challenging, especially if the transfer is a service provision change. It can be very difficult to get employee information before the transfer, in good time or in some cases at all.
Earlier this year the Information Commissioner’s Office (ICO) issued guidance relating to TUPE and data protection. The ICO confirmed that an employee’s consent is not needed to transfer their employment record to the transferee new employer.
TUPE requires the transferor to provide the transferee with information about the transferring workforce before the transfer or change in service provision. Such disclosures are permitted under the Data Protection Act 1998 because they are legal requirements. In doing so, both parties must still comply with data protection principles.
Following the changes to TUPE that came into force in January this year, employee information must be given to new employers who take over the employment of the transferring employees at least 28 days before the transfer. The information that should be transferred includes:
- The age and identity of the transferring employees
- information contained in their terms of employment, eg 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 ICO guidance allows employment records to be given to the new employer. It recognises that a large portion of the employment record is likely to be needed, and that the employee’s consent is not required. The new employers should consider whether it needs all the personal information contained in the files, and to remove any unnecessary information.
As a matter of good practice tips the transferor and transferee should:
- agree what information is to be transferred well before the transfer takes place
- tell employees their information is being passed to the new employer
- consider whether any personal information can be anonymised before providing it if not required under TUPE
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