Not sure if this is the whole answer, but under s.10 of the DPA you can seek
to prevent processing that is likely to cause *substantial* damage or
*substantial* distress only when none of the first four Schedule 2
Conditions apply - i.e. when the Data Controller is relying on Condition 5
(public functions) and/or Condition 6 (legitimate interests). In this case
I suspect that Condition 2 (necessary for a contract) may apply, in which
case there is no right to prevent the processing.
The first issue would be whether it is *necessary* to process the data in
that particular way. If it can be shown to be necessary, the processing
cannot be prevented. Even if it is not necessary there is the test of
whether the harm would be *substantial*. Early on under the 2000 Act I seem
to remember there was a case about whether transferring employee data abroad
in a multinational company was *necessary* in connection with their
employment contract. As far as I recall it was found to be convenient but
not necessary and therefore there was a breach of Principle 8. Someone else
may know what I'm talking about.
I would be very surprised if it turns out the Finance Director is wrong on
this one, if only because any interference in how organisations choose to
carry out their personnel administration would cause so much chaos across
the board that I can't see any court ruling in favour of the employees.
Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB
I hereby require any recipient of this message not to use my personal data
for direct marketing purposes.
----- Original Message -----
From: "Anne Gadsden" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Friday, April 28, 2006 12:50 PM
Subject: NHS Electronic Staff Record - Opting out?
Some of you may have heard that the NHS is introducing an Electronic
Staff Record in the very near future - our Trust will be up and running
with it next year. There are the usual benefits to replacing a very
creaky and not-well run part-manual part-electronic system with an
all-singing all-dancing electronic record, certainly.
Our staff have concerns about the fact that there will be a central
"Data Warehouse" somewhere in the heart of England holding all the staff
information. Worries about security, access, etc. Some of them have
written to our Data Protection Officer with their concerns, and
threatening to opt-out of the system.
The Finance Director of my organisation has said that staff are not
allowed to opt out, and if they do, they can no longer be employees of
the Trust (Yup, he's happy to threaten). I have mentioned that there is
a DPA paragraph which states that an individual can ask a data
controller to cease processing if the individual feels that "(a) the
processing ..in that manner is causing or is likely to cause substantial
damage or substantial distress to him..."
The Finance Director (who is superior to me in this organisation) says
that staff do not have any right whatsoever to opt out. I have e-mailed
the Information Commissioner to check (waiting a reply) but meantime
wondered if anyone else can give me advice/guidance on this one,
particularly anyone else in my shoes?
Thanks everyone, a knotty one for me on a Friday afternoon!
Anne
Anne Gadsden AHRIM
Information Governance Officer
Information Services Department
North Cumbria Acute Hospitals NHS Trust
Cumberland Infirmary
Carlisle CA2 7HY
01228 814539 (direct line)
e-mail: [log in to unmask]
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