Data protection

 Major Data Protection legislation changes coming  have arrived in 2018 . See here for more on the GDPR 

The below article must be read in conjunction with the General Data Protection Regulation   which became law in Ireland on the 25th May 2018. It has replaced all relevant data protection regulations.

The main act dealing with data protection in Ireland was the Data Protection Act 1988 as amended by the Data Protection (Amendment) Act 2003.

In the virtual world the ePrivacy Regulations 2001 deal with data protection for internet, telephone, email and sms use.

The data protection legislation in Ireland is wide ranging.

We will deal here with employment related data protection concerns.

1. The keeping of work related records.

2. Monitoring staff

3. Vetting prospective employees

4. Biometrics

5. Transfer of ownership

The keeping of work related records.

It is important to remember than an employee has the right to see their own workplace records under data protection law in Ireland. The records should be accurate and well maintained.

There is an exception in relation to medical records. The Data Protection (Access Modification) (Health) Regulations, 1989 (S.I. No. 82 of 1989) provide that health data relating to an individual should not be made available to that individual, in response to an access request, if that would be likely to cause serious harm to the physical or mental health of the data subject. You should refer the file to the company doctor.

If the information is very sensitive, you should take advice from one of our experts.

Monitoring staff

It is important to maintain a balance between protecting the interests of the business and the right to privacy of the employee.

The collection of information, whether electronic, written, data based, images or internet based is covered by the Data Protection act.

The acceptable usage policy is a very important document. Make sure that an effective one exists in your workplace. Contact us for assistance.

Monitoring company vehicles

With a wealth of devices available to keep track of company vehicles, the question that arises for both the employer and employee is, how does the monitoring of a company vehicle affect the data protection rights of the worker in Ireland ? The answer is simple. It is covered under current Irish Data Protection legislation. The monitoring of a company vehicle involves the collection of personal data. In tracking the vehicle, you are also tracking the movements of the person in charge of that vehicle. This brings it under the remit of the Data Protection Act 1988 as amended by the Data Protection (Amendment) Act 2003.

You must be able to show that there is a good business reason to implement vehicle tracking.

You have to make it known to the employee concerned that the vehicle is being monitored, and the reasons why. This should be in writing and receipt acknowledged by the employee.

If the employee is permitted to use the vehicle for non work purposes, there must be a way to turn off the tracking device, so that you are not monitoring the worker's private movements.

Vetting prospective employees

Only those organisations which are registered with the Central Vetting Unit within An Garda Siochana can request such a process.

Biometrics

With the constant improvement in methods for using biometric data in the workplace, care should be taken to ensure that their use is not excessive.

The data protection act states that data "shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they were collected or are further processed."

Transfer of ownership

The negotiation process in the transfer of ownership of a business will usually involve the disclosure of employee data. This must be clearly and thoroughly dealt with in the Data Protection Policy of the business. It should deal with the circumstances under which data will be exchanged, together with the type of data. The sharing of sensitive data should be avoided.

Take care. Take advice

Getting it wrong when it comes to Data Protection can unleash a torrent of bad publicity and create tension in the workplace. It is better to take care and get it right first time.

Please feel free to contact us using the orange Tell Me More button below, for independent advice.

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The Benefits of Contract of Employment

The contract of employment in Irish employment legislation is probably one of the most valuable documents available to the employer and the employee alike.

A well written contract of employment will cover all aspects of the employment relationship and in doing so, will help eliminate the friction which can occur when problems are not dealt with.

Take something as simple as a retirement age. If none is mentioned in the contract, and you let a worker go because they have reached a certain age, you will be guilty of discrimination in respect of that person's age, and will be facing the prospect of having to pay compensation, and other remedies.

Let's look at why you need a contract of employment, can you change the terms to reflect changing needs in the business and related topics.

Why do I, as an employer, need to provide a contract of employment ?

There is no legal obligation to provide a written contract of employment. The Terms of Employment (Information ) Act 1994 places an obligation on the employer to give an employee a written statement of certain terms of employment within 2 months of starting work. For more click here

UPDATE : CHANGE TO LEGISLATION ON 1st MARCH 2019 See here for more

This covers many of the areas contained in a contract of employment in Ireland, but it does not include everything. In simple, practical terms, if you have to go to the trouble of providing the above terms, why not include everything and reduce the risk of being sued?

As a busy business person, you know the value of making best use of your time. When you start a job, would you leave it unfinished halfway through? That's why it makes sense to put all the applicable terms and conditions of employment into the contract at the same time, and reduce the risk of problems arising in the future. The employee will be content to know that the contract contains a list of problem solving procedures which they can follow in the event of a difficulty arising. It will also let them know what is expected from them. This sets a good foundation for the working relationship. If you fail to address problem issues in this way, you may lose control over them, should they arise in the future.

Can I change the terms of employment to reflect the changing needs of the business?

This depends on the contract. If it is expressly agreed in the contract that you may change the terms, then you can, where the change is necessary and reasonable.

In cases where there is any ambiguity, then you can't.

Where there is no clear contractual right to vary the terms of employment, then you have to get the employees consent to the change.

In many cases this consent may be implied. For example, where an employee has been clearly notified, and works under the new terms, he may be deemed to have accepted the change. This is very dependent on the circumstances of each individual case, and we cannot generalise. You should seek advice prior to implementing any unilateral changes to an employees contract of employment.

Clear communication with employees is essential in order to gain support for the proposed changes. Explain the need for the changes and the benefits accruing.

Can other documents form part of terms of employment?

Yes. The wording of the advertisement for the job, can form part of the contract of employment. The job offer letter can also for part of the contract. You should be very careful when drafting the wording of this letter. A badly worded letter has been held to offer a term of employment which exceed the probationary period and therefore the employee was unfairly dismissed when their employment was terminated during the probationary period.

You will need the employee's written consent to take up references and medical reports.

Is there a DIY solution to drafting a contract of employment ?

Yes. We advise you to get help from our experts. However if you want to do it yourself you can download our updated employment contract document, together with our simple guide to completing it . You can opt to have the completed document reviewed by one of our experts for peace of mind. Just click on the blue button to view our selection of employment law documents to help reduce your legal expenses.

The key message

Spend a little time and money now and save a lot of time, money and aggravation later.

Contact us using the orange Tell Me More button below. 

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Confidentiality clauses

Confidence in confidentiality clause

A confidentiality clause in a contract of employment is a restrictive covenant. It is designed to protect the legitimate business interests of the employer. It must be reasonable with regard to what it is protecting, how long it will last and what geographical area it covers. The fact that it is a restrictive covenant means that a breach of contract on the employers part will prevent them from relying on the restrictive covenant.

The wording of the clause must be clear and unambiguous. The interests to be protected must be clearly defined.

In a transfer of undertakings situation, the benefit of a confidentiality clause will transfer to the new owner, in certain circumstances and subject to certain qualifications.

What happens if I don't have a written confidentiality agreement?

It is more difficult to enforce, however, there is an implied duty of fidelity and an obligation of loyalty in employment contracts. Depending on the individual circumstances it may extend to cover trade secrets or confidential information after the employment has terminated.

Non – solicitation clauses

This clause prohibits a former employee from attempting to contact clients, customers,key suppliers, employees of their former employer in order to transact business with them.

It does not seek to prevent the former employee from working for a competitor.

Non compete clause

This clause seeks to prevent a former employee from competing with their former employer. To be effective it must meet the criteria for confidentiality clauses, stated above. It clearly includes a non – solicitation element.

Confidentiality is an important part of any business. You should seek professional advice when drafting confidentiality clauses. You do not want to find out too late that the clause you drafted was not effective.

What about short term employees?

You should have a draft agreement ready which can be signed by short term employees. Anyone who may have access to confidential information should sign a confidentiality agreement. This should be applied to agents as well. For example, there may be confidential information on a computer which is being repaired by an outside IT consultant.

Get help today

If you do not have a full confidentiality clause in your employment contract, you risk losing business to competitors. Don't delay contact us today and we will help protect your business. Just click on the orange Tell Me More button below, fill in the short details and we'll take it from there

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