Data Protection Act 1998 (DPA)   Your responsibilities

New increases to SMP, SSP, unfair dismissal and redundancy pay   

Conflict Resolution for Results   Increase your bottom line for £60 + VAT

Data Protection Act 1998 (DPA)

The Data Protection Act is a subject that most employers find a minefield, lengthy and, in places, confusing!  Employers may be forgiven for feeling this way. It is indeed a massive subject with some areas difficult to put into practice and maintain.   That may be the case but it still needs to be understood and adhered to. We cannot in one newsletter cover all areas.  In this issue we start with the eight principals of the Data Protection Act that will apply to all employers.

We also look at the role of data protection in recruitment and selection.  Do you know how long you should hold on to information about ex-employees?

Some definitions

"Personal data" - that is data relating to identifiable living individuals

"Sensitive Personal Data" - covers information concerning a person’s:

• racial or ethnic origin
• political opinions
• religious beliefs or other beliefs of a similar nature
• membership or non-membership of a trade union
• physical or mental health or condition (sickness records should be treated as 'sensitive personal data')
• sexual life
• commission or alleged commission of any offence
• involvement in proceedings for any offence committed or alleged to have been committed by him/her, the disposal of such proceedings or the sentence of any court in such proceedings

"Data Controller" - those who decide how and why personal data is processed

"Relevant filing system" - applies to records which are "structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible".

Most data controllers will need to notify the Information Commissioner of their processing of data.  There are some exemptions that are likely to apply to small businesses that have relatively simple data processing operations.

The Principals say that data must be:

(1) Fair and lawfully processed, that is with consent or under legal obligation (for instance information required for payroll, pension and tax purposes).

(2) Collected for specified purpose.

(3) Adequate, relevant and not excessive (this includes collection of 'sensitive data')

(4) Accurate and kept up to date

(5) Kept no longer than is necessary

(6) Processed in line with the data subject's rights i.e. complying with reasonable request to amend or delete.

(7) Kept secure and confidential

(8) Not transferred outside European Economic Area (EEA) which consists of the fifteen EU Member States together with Iceland, Liechtenstein and Norway.

Recruitment and Selection

Employees have the right to challenge the accuracy of personal data relating to them. It is therefore vital that the information is relevant and accurate.  Employees also have the right to ask the employer to change any inaccuracies.

Some simple standards to follow

• Inform staff about what information will be kept about them, how it will be used and who will have access to it, including their rights under DPA and the right to access to relevant information held about them.
• All of those who have access to or responsibility for personal data should be made aware of the organisation's policies and practices and their own responsibilities.
• When recruiting:
  • Seek only information that is relevant to the job in question.
  • Application forms should state the organisation the information is going to, how it will be used and how long it will be held.
  • Following interview only hold information that is relevant to the selection decision and for the purpose of appeals and monitoring e.g. ethnicity for monitoring equal opportunities.
  • Be aware that candidates have the right to access information collected about them.
  • Advise unsuccessful applicants that there is an intention to keep their names on file for future vacancies (if appropriate) and give them the opportunity to have their details removed from the file.
• Employee References:
  • Do not provide a written reference unless the employee has given consent to you or to a third party you can trust
  • Protect the identity of the third party unless they have given you consent to disclose their details when a request to access is received from an employee
• Length of time to hold records
  • Generally employment records should be kept for a period of 6 to 8 years.  However, any information related to the employee's pension must be held until the employee reaches the age of 72.
  • Medical Reports of those exposed to a substance hazardous to health, will need to be kept for 40 to 50 years.

Useful address:

Information Commissioner

Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF

Telephone: 01625 545745 (for information and other parts of the Code) or 01625 545740 (for notification)

E-mail: data@dataprotection.gov.uk

New increases to SMP, SSP, unfair dismissal and redundancy pay

From the 1st February 2004:

• The statutory cap on the weekly  wage used for calculating statutory redundancy and unfair dismissal basic awards increased from £260 to £270 per week.
• Maximum compensatory award for unfair dismissal increased from £53,500 to £55,000

From 4th April the following increases will take place:

• Statutory Maternity Pay (SMP) from £100.00 to £102.80.  This also applies to statutory paternity and adoption pay ((or 90% of the person's average weekly earnings if that is less than £102.80).
• Statutory Sick Pay (SSP) £64.35 to £66.15 per week.
• The lower Earnings Limit for payment of Income Tax and National Insurance to £79 per week.

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The information in this newsletter is of a general nature and is not a substitute for professional advice. You are recommended to obtain specific professional advice before you take any action.

For further information, advice or assistance on any of the matters raised in this newsletter please contact Picasso HR on 01473 890037.

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