Collective consultation, data protection and confidentiality

Employers sometimes resist sharing information about redundancies with union reps by relying on arguments linked to data protection and commercial sensitivity. However, data protection laws do not prevent employers providing this information to reps. This is because these laws permit the processing of personal data to comply with statutory employment obligations, and this includes the legal duty to consult collectively with unions. In any event, a lot of information can be anonymised if necessary.

As regards confidentiality and commercial sensitivity, the law does not allow an employer’s confidentiality concerns to override its statutory duty to consult over redundancies and TUPE transfers. Union reps can and often do enter into confidentiality agreements restricting disclosure of sensitive information provided during consultation. A rep who breaches confidentiality obligations after these have been clearly explained risks being disciplined and even dismissed (see Chapter 5).