S.I. No. 730/2020 - Protection of Employees (Employers’ Insolvency) Act 1984 (Transfer of Personal Data) Regulations 2020

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 8th January, 2021.

I, LEO VARADKAR, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 8A of the Protection of Employees (Employers’ Insolvency) Act 1984 (No. 21 of 1984) (as adapted by the Business, Enterprise and Innovation (Alteration of Name of Department and Title of Minister) Order 2020 (No. 519 of 2020)) hereby make the following regulations:

1. (1) These Regulations may be cited as the Protection of Employees (Employers’ Insolvency) Act 1984 (Transfer of Personal Data) Regulations 2020.

(2) The 31st day of December 2020 at 11.00 p.m. is appointed as the day on which and the time at which these Regulations shall come into operation.

2. In these Regulations, “Principal Act” means the Protection of Employees (Employers’ Insolvency) Act 1984 (No. 21 of 1984).

3. Where -

(a) an employer is insolvent under the laws, regulations and administrative procedures of the United Kingdom,

(b) the employees concerned are employed or habitually employed in the State, and

(c) the Minister receives an application under sections 6 or 7 (or both) of the Principal Act that -

(i) relates to that employer or those employees, and

(ii) has been made by or on behalf of a relevant officer, actuary or a person performing a similar task,

these Regulations apply to the transfer of personal data, and to the transfer of special categories of personal data, between the Minister and the relevant officer, actuary or a person performing a similar task in connection with the application.

4. (1) In considering an application referred to in Regulation 3, the Minister shall, in accordance with these Regulations, consider whether the transfer of personal data or special categories of personal data to or from the relevant officer, actuary or a person performing a similar task is necessary for the carrying out of the Minister’s functions under the Principal Act.

(2) A reference in paragraph (1) to considering an application includes -

(a) processing personal data and special categories of personal data that are relevant to the application, and

(b) considering any documentation submitted with or connected to the application that is relevant to such personal data.

5. In relation to an application referred to in Regulation 3, where the Minister considers that, for the purpose of carrying out of his or her functions under the Principal Act in respect of the application, he or she requires -

(a) personal data other than those provided as part of the application,

(b) special categories of personal data other than those provided as part of the application, or

(c) additional or further documentation relevant to such personal data or special categories of personal data,

the Minister shall request a transfer to the Minister from the relevant officer, actuary or person performing a similar task, of the personal data, special categories of personal data and additional or further documentation that the Minister considers to be necessary for the purpose of carrying out of his or her functions under the Principal Act.

6. In making a request under Regulation 5, the Minister may -

(a) to the extent necessary for specifying or identifying the personal data, or special categories of personal data, to which the request relates,

(b) to the extent that the data is necessary for the carrying out of functions under the Principal Act, and

(c) having regard to the principle of data minimisation,

transfer the personal data, or special categories of personal data, of an employee to the relevant officer, actuary or person performing a similar task.

7. Where a relevant officer, actuary or person performing a similar task provides the Minister with a response to a request under Regulation 5, the Minister shall process any personal data, special categories of personal data or documentation transferred as part of the response to the extent necessary to properly carry out his or her functions under the Principal Act.

8. If, in the course of carrying out his or her functions under section 10 of the Principal Act, the Minister issues a statement of debt to a relevant officer, actuary or a person performing a similar task, all or any the following may be transferred as part of the statement of debt:

(a) the personal data of an employee to whom that debt relates, in whole or in part;

(b) special categories of personal data of an employee to whom that debt relates, in whole or in part,

to the extent that those personal data, or special categories of personal data, are necessary for the carrying out of the Minister’s functions under the Principal Act.

GIVEN under my Official Seal,

30 December, 2020.

LEO VARADKAR,

Minister for Enterprise, Trade and Employment.

EXPLANATORY NOTE

(This note does not form part of the Instrument and does not purport to be a legal interpretation.)

These Regulations made under section 8A of the Protection of Employees (Employers’ Insolvency) Act 1984 provide for the exchange of information between the Minister and a relevant officer, actuary or a person performing a similar task, appointed to an employer which is in a state of insolvency under the laws of the United Kingdom.

The exchange of information is necessary to ensure that applications to the Insolvency Payments Scheme on behalf of employees who are in insurable employment in Ireland and whose employer is in state of insolvency under the laws of the United Kingdom can continue to be processed following the withdrawal of the United Kingdom from the European Union.