Data protection

Data protection concerns cannot be used by employers to justify a failure to consult. The Data Protection Act 1998 (DPA) does not prevent an employer supplying information to unions to fulfil TUPE obligations. This is because the data protection regime contains an exemption for information supplied under a legal duty.

In some situations, this statutory duty is not triggered, for example, where there is consultation over a share sale (where TUPE does not apply — see page 14), or because consultation is taking place before a formal duty to inform and consult under TUPE has crystallised (see page 44).

Where this happens, data protection concerns can be easily overcome by anonymising information, seeking employee consent, and/or by instructing reps in the proper use of the data and providing data protection training. The employer must spell out the rules clearly, including the disciplinary consequences if the rules are broken.