It is legally required that in the case of transfer, certain information of the employees be revealed to the new employer. The old employer should provide information at least 2 weeks before the entire transfer has been completed. If they do not, then the old employer is liable to face penalties. However, the provisions laid under the DPA needs to be followed closely. The information provided to the new employer about the employees need to be precise and secure. The new employer should also be very careful about the personal information that has been secured.
They can use it only for the sake of adapting the staff to the new business or estimating the liabilities possessed by the organisation. In certain circumstances, there may be a need by other parties for information of the employees that may not be within the terms and conditions of the data protection act (such as for potential bidders). In such a circumstance, identifiers need to be removed and only when specific consent has been taken, should names and other personal information be disclosed (Information Commissioner’s Office, 2008).
When the firm is taken over by a new party who would then be the new employer of the employees, it may be required that the personal files and the confidential reports of the employees be handed over to the new employers. The new employer should determine whether all the information in the files is required, or whether certain information deemed as unnecessary should be deleted securely. The old employees can keep personal information of the employees only if a justifiable reason for the same is required.
This may include reasons such as dealing with liabilities our court cases. Once the settlement occurs, the old employer is supposed to destroy the personal information of the employees (Information Commissioner’s Office, 2008). During the process of transfer of the organisation, the persons that are involved in the transfer process should be aware of the data protection act provisions so that personal information of the employees are not misused or neglected.
Excessive and irrelevant information should not form a part of the transfer process. Such information need to be destroyed or deleted securely (Information Commissioner’s Office, 2008). Answer 3 – Kamilla and David’s firm is a small and a relatively new firm that is not even providing written documents to the employee regarding the statement, terms of contract, restrictive activities, etc. They also do not seem to understand the importance of protecting the information that may be existent in the business.
It seems that Kamilla and David did not provide any written contract to the employees regarding the terms and conditions of their employment. This would cause several problems not only to the organisation but also to the employees. The employees are at a risk of misusing the data present in the organisation. Besides, they are also free to utilise their experience in the organisation to set up a competing business simultaneously with the present employment and also after leaving the organisation.
This is because of the absence of certain contractual restrains. Petra is free to set up a competing business during her employment as there would not be any contractual restrictions to fulfil. If Kamilla and David require they can immediately enforce a contractual requirement that asserts that all the staff members are not permitted to have a competing business simultaneously with their current employment in the organisation. This would ensure that the staff members are fully aware of the contractual agreement and do not set up a competing business.
They can also have a requirement in the contract that the employees are not permitted to set up a competing business after they leave the organisation or for certain duration of time after they leave the organisation. However, the restriction of working in a competing business should not be wider than necessary. It should be made in such a way that it protects the legitimate interests of the business. It should only ensure a minimal level of protection and not prevent the employee from working in a slightly different area.
A complete ban on working would prevent the employee from gaining a living and this would really be unnecessary and unfair. Some of the restrains that can be enforced by the employer include:- 1. Prevent the employee from calling up the customers for a certain period after their employment. This would however, not include the personal customers. 2. The restrains should prevent the employees from calling up the customers and in turn should not prevent the customers from calling the employees and having business deals with them.
This type of an agreement should be for a limited duration. 3. The employee should restrain the employee from setting up the same type of business for a certain duration of time (3 to 6 months), that can compete with the business of the organisation. This would ensure that no information that may be present in the organisation would be misused by the employees (Lemon & Co Solicitors, 2008). The scope and extent of such clauses mentioned in the contact should be for certain period of time, within a certain geographical area and be applicable for only certain type of businesses only.
If the employee breaches the clauses mentioned in the contract, even after his employment in the organisation ends, the employer can sue him in court and claim for damages. However, if the clauses mentioned cover a very broad area and would result in difficulty in seeking employment in other organisations, the employee can oppose these clauses by suing the employer in court (Compact Law, 2008). The employees of the organisation may also misuse the confidential information that may be present in the organisation and use it for personal gain.
To ensure this, the organisation needs to take several measures to ensure that the confidential information is appropriately safeguarded. The contracts should contain a clause mentioning the requirement that the employees maintain confidentiality of the information that may be present in the organisation (Cook, 2006). In this case, Kamilla and David have taken no confidential or non-disclosure agreements from their staff members, and hence they are at the risk of losing the security of vital data that is a part of the organisation’s business strategy.
References BBC. 2005. Written statement of terms, BBC, viewed 3 January 2008, http://www. bbc. co. uk/consumer/guides_to/employment_statement. shtml Compact Law 2008. Employment Contracts – What should be included in an employment contract? Compact Law, viewed 3 January 2008, http://www. compactlaw. co. uk/employment_contracts. html Cook, T. 2006. The Law and IT Security, IT Director, viewed 3 January 2008, http://www. it-director. com/channel/TaylorWalton/8441/ Department for Business Enterprise & Regulatory Reform. 2008.
Example form of a written statement of employment particulars, BERR, viewed 3 January 2008, http://www. berr. gov. uk/whatwedo/employment/employment-legislation/employment-guidance/page16332. html Department for Business Enterprise & Regulatory Reform. 2008. Written statement of employment particulars: guidance, BERR, viewed 3 January 2008, http://www. berr. gov. uk/whatwedo/employment/employment-legislation/employment-guidance/page16367. html Employee Privacy Rights UK 2008. Introduction to the Data Protection Act, Employee Privacy