Snakes and ladders?

Mar 06 2002 by Brian Amble Print This Article

The next few days will see the launch of the new Code of Conduct for

Employers in the field of Data Protection. There was widespread criticism

of the October 2000 draft code. The Information Commissioner’s Office held

back on the originally intended publication date (March 2001) and has now

determined to publish the Code in 4 tranches commencing Mid March 2002.

The Code will cover the data protection requirements for Employers handling

employees’ personal data over the period pre recruitment to many years after

termination of employment. The first tranche of the code will deal with

recruitment and record keeping and later sections will deal with monitoring

employees and medical records.

The Draft code met with complaints from business and the trades unions. It

was alleged to be too complex and unworkable. At a June 2001 conference

hosted by the Information Commissioner in Manchester one critic described

compliance as being like a game of snakes and ladders.

Critics felt at the time that the draft code, which contained over 200

requirements for employers, was badly drafted, too long and complex. The

draft Code, it was felt, failed to recognise the pressures on employers and

did not adequately balance the risks for employers of the use of email with

employees’ rights to privacy. One of the severest criticisms was that it

was “totally unrealistic”.

Some critics felt that the Code contradicted other regulations, notably the

Lawful Business Practices Regulations, with regard to interception of

employee’s emails. The Information Commissioner’s office took the view

that although something could be permissible under the Lawful Business

Practices Regulations it might yet be unlawful under the Code and the Data

Protection Act.

On the employees’ side of the fence it was felt that the code needed to be

realistic and fair. Recognition had to be made of the rights employees had

under the European Convention on Human Rights.

For the Information Commissioner the point was made that the Code imposed no

new obligations; the code of practice merely reflected the obligations

Employers had under the existing law. Following the criticisms and the

formal consultation period the Information Commissioner agreed to look at

the draft again.

It remains to be seen whether the new version achieves clarity and

widespread acceptance. Employers feeling that they are drowning in a

welter of regulations may not welcome the code, however drafted. It is

clear however, that they must take steps to ensure that it is followed and

that managers are aware of the Code’s requirements.

The Code is likely to be just as all-encompassing as the draft; much of the

draft Code was the Information Commissioner’s view of the law, the balance

was her interpretation of what was “good practice”. Failing to adhere to

the Information Commissioner’s notions of “good practice” might mean that

the Information Commissioner considered it “unfair” processing; which would

itself be a breach of the Act and an Employer could face enforcement action

in the Courts.

The Code is aimed at medium sized organisations, though the requirements of

the Act and the Code will apply to all employers, whatever their size.

There is likely to be supplementary information published for the benefit of

smaller organisations and for employees.