Data draft code brings legal uncertainty

Consultation on the Data Protection Commissioner’s draft code of practice
for employers has closed amid angry accusations that it would leave employers
wide open in tribunal cases.

The draft, which employers’ groups say is far too detailed and prescriptive,
proposes that employers should not keep detailed sickness records without
employees’ express consent.

It also warns against keeping information on sex, ethnic origin, disability or
other "personal characteristics" unless absolutely necessary.

But this would make it impossible for organisations to defend themselves
against claims of discrimination and unfair dismissal.

"The regulations are at odds with employment tribunal proceedings and
leave employers uncertain about their legal situation," the CIPD’s
employee relations adviser Diane Sinclair said.

DPC Elizabeth France acknowledged the employment law arguments for keeping
records, but said she had "doubts how far this line of argument can be

The kind of data warned against in the code is often pivotal in cases
involving sickness absence and disability. And detailed statistics on sex and
race will be crucial when the Burden of Proof Directive becomes law later this
year, forcing employers to defend themselves against prima facie cases of

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