Stakeholders in relation to an Insolvency Privacy Notice
In this section, the term "Company" refers to the business which is subject to an Insolvency or restructuring regime (each referred to as an "Insolvency").
Insolvency Practitioners and FRP's roles in Insolvency Proceedings
Definitions under Data Privacy Laws:
- A controller is an individual or legal person who decides how and why personal data is processed. A controller is in control and is responsible for the collection, keeping and use of personal data.
- A processor is an individual or legal person (other than an employee of a controller) which processes personal data on behalf of a controller.
The data controller for personal data processed by the Company prior to the Insolvency is the Company. Upon appointment, the Insolvency Practitioners act in the capacity of agents of the Company in fulfilling the role of managing the Company's affairs, business and property and so the Company continues to be the controller for personal data collected and processed in this context.
The Insolvency Practitioner will typically be the Data Controller in respect of the information the personal data they process to comply with their own legal and regulatory requirements as Insolvency Practitioners.
FRP may act as a data processor on behalf of the Insolvency Practitioner or the Company as appropriate in relation to the engagement.
What we collect
We collect personal data about stakeholders in relation to an Insolvency when we provide advice to a Company or Debtor about their financial difficulties so that we can get a full picture of their circumstances. When a Company or Debtor is subject to formal Insolvency proceedings, the Debtor or controllers of the Company are required to provide certain information.
The types of data we collect, and process can vary, it may include:
Creditors: If you are owed money as an individual (for instance, because you are a sole trader who has not been paid for work you have conducted), we need to know your name, address, contact email (if you have one), confirmation of the amount you are owed and your bank account details. This is so that we can contact you with notification about the case, provide you with an opportunity to exercise your rights as a creditor and facilitate an electronic bank transfer if necessary. We are unlikely to hold any other personal information about you.
Book Debtors: If you are a customer of a Company that is insolvent and haven't paid for the product or service you received, it is likely that we will hold details of your name, address, contact email (if you have one) and confirmation of the amount owed. We need this information so that we can collect any amounts that are due to the Company. We will be unlikely to hold any other personal information about you.
Employees: If you were employed by a Company that has become Insolvent, the Insolvency Office Holder has a number of responsibilities in relation to money that the Company owes you. We are likely to be processing the following information:
- Personal contact details such as name, title, addresses, telephone numbers, and personal email addresses
- Date of birth
- Employee information such as national insurance number, occupation and function within the Insolvent business, location of employment or workplace, salary, record of your holiday entitlement and other absence information
- Financial Information such as bank account details, payroll records and tax status information
We may also have access to your full personnel file, although this will be information we have access to as agent on behalf of your former employer and we do not consider ourselves to be the Data Controller of it, although will use our best endeavors to ensure that it is only processed in accordance with the legislation.
Other Stakeholders: An Insolvency Office Holder will interact with various parties in the course of their investigations into and administrations of the affairs of an Insolvent entity.
In the course of that work, we may come into possession of various items of personal data, such as (but not limited to):
- Share ownership information, including bank details if required
- the contents of wills
- the details of beneficiaries under a trust
- the beneficiaries under assurance and insurance policies
- vehicle ownership details
- the details of joint owners of property or other assets
- the spouses, co-habitees and dependents of Debtors and their financial contribution to shared expenditure
- details of parties jointly liable for any debts owed by the Insolvent entity
- any other information that is relevant to the assets, liabilities or causes of failure of the Insolvent entity
We collect data;
- From our clients during an advisory process or formal insolvency proceedings
- From information contained in the Company's books and records which is obtained when the officeholder is appointed though in respect of this information, the Office Holder will not generally be a Data Controller of it but will be acting as agent on behalf of the Company
- From time to time, we may collect additional personal information in the course of our investigation into a Company's affairs. These investigations may involve contacting third parties that are known or suspected to have had financial dealings with the Company, where we consider that the information they may provide could assist us to properly administer the affairs of the Company
- From a number of other sources in a formal Insolvency process, such as the Official Receiver (in England), Accountant in Bankruptcy (in Scotland). In all cases (both solvent and insolvent) information may also be received from the creditors, debtors and employees of the Company, and/or other stakeholders in the process that make such information available to us in the course of administering the affairs of the Company
How we use your personal data and legal basis for processing
Personal information will only be processed when there is a lawful basis for doing so. Most commonly, we will use personal information collected in connection with Insolvency proceedings for the proper performance of the statutory functions of an Insolvency Office Holder and/or where it is necessary to do so in respect of legal claims.
The situations in which we envisage using your personal information are as follows:
- to notify you of your rights as a creditor or former employee
- to adjudicate on the amounts you claim to be owed by an Insolvent entity
- to recover money that you owe to a Company
- paying dividends to creditors and distributions to shareholders
- in pursuance of the lawful functions of an Insolvency Office Holder in investigating the affairs of the Insolvent entity and the causes of their Insolvency (where appropriate)
- in the recovery of any assets that you have acquired from the Company in a manner which may be challengeable under law
- when selling or otherwise disposing of the assets of the Insolvent entity
- when reporting periodically to the people the Insolvent entity owes money to
- when gathering evidence for possible legal proceedings
- when reporting upon directors' conduct in relation to the Company, as required by the Company Directors Disqualification Act 1986
- to prevent fraud, Money Laundering or Terrorist Financing
- any other purpose as may be required by relevant legislation in connection with formal insolvency proceedings or the administration of the affairs of the Insolvent entity
If you fail to provide personal information
If you fail to provide certain information when requested, you may be unable to assert your rights in the Insolvency proceedings. In some instances, the Insolvency Office Holder may take steps to compel you to provide it in Court and/or to acquire the information we need to properly administer the affairs of the Company from third parties.
Special categories (sensitive) personal data
Some categories of personal data are considered by law to be particularly sensitive and are therefore classed as "special categories" of personal data. These relate to a person's racial or ethnic origin, political opinions, religious or similar beliefs, trade union membership, physical or mental health conditions, sexual life, sexual orientation, biometric or genetic data. This type of data is afforded additional protection.
There are a limited number of situations where we might possess special categories of data about stakeholders:
- When we are administering the affairs of a Company we may need to assess whether a stakeholder is subject to a particular circumstance, vulnerability (including a lack of mental capacity) or any other special factor which should be taken into account by us when making decision about how we administer the affairs of the Company. This information may have been provided by you directly or may have been brought to our attention by a third party (such as the Official Receiver, Accountant in Bankruptcy, a relative or family member, or someone the Company owes money to). Depending upon the nature of the information we receive, we may not need your consent to have or use this information, where it is relevant to the performance of our functions as an Insolvency Office Holder
- We may possess special category information where it is needed in relation to legal claims or proceeding relating to the affairs of the Company. Depending upon the nature of the information we receive, we may not need your consent to have this information
We consider it unlikely that we will be routinely processing special categories of personal data, other than in relation to the claims of employees as against their former employer. In this regard, we will generally be acting as agent on behalf of the Company, rather than as Data Controller.
Information about criminal convictions
We envisage that we may hold information about criminal convictions where these are relevant to the causes of failure of the Company or the performance of the functions of an Insolvency Office Holder. If it becomes necessary to do so, we will only use this information where we have a legal basis for processing the information. This will usually be where such processing is necessary to carry out the role and function of an Insolvency Office Holder.
We may also use information relating to criminal convictions where:
- it is necessary in relation to legal claims
- it is necessary to protect a person's vital interests and they are not capable of giving consent
- it is relevant to the statutory reporting obligations of an Insolvency Office Holder
- the information is already in the public domain
We will only collect information about criminal convictions if it is appropriate given the nature of the role of a restructuring advisor or insolvency Office Holders. Relevant convictions would typically be those relating to theft, fraud or dishonesty, money laundering or terrorist financing.
Sharing and disclosing your personal data
We do not share or disclose any of your personal data without your consent, other than for the purposes specified in this notice or where there is a legal requirement. When we share data with others, we ensure contractual arrangements and security mechanisms are in place to protect the data and to comply with our data protection, confidentiality and security standards.
Your personal data may be shared with:
- Third parties involved in Insolvency proceedings, including but not limited to the courts, Official Receiver, Accountant in Bankruptcy, other creditors, Companies House, the Redundancy Payments Service and other third parties involved
- Third party organisations that provide applications/functionality, data processing or IT services to us
- Our trade associations, professional bodies and business associates e.g. agents, auditors, solicitors, accountants etc.
Occasionally, we may also need to disclose your personal data in the following circumstances:
- Based on our legitimate interests, to third parties if we choose to sell, transfer, or merge parts of our business or our assets. Alternatively, we may seek to acquire other businesses or merge with them. If a change happens to our business, then the new owners may use your personal data in the same way as set out in this privacy notice
- To law enforcement officials, law courts and government and regulatory authorities: (a) if we believe disclosure is required by any applicable law, regulation or legal process; or (b) to protect and defend our rights, or the rights or safety of third parties, including to defend against legal claims based on our legitimate interests
- In exceptional circumstances, to third parties to protect your vital interests if you fell ill or suffered an injury at one of our events or on our premises
How long we keep your data
We only ever retain personal data for as long as is necessary for the purposes for which it was collected, and we have strict review and retention policies in place to meet these obligations. We keep personal data in accordance with our internal retention policies, which are determined in accordance with our regulatory obligations and good practice.
We retain records collected and created in Formal Insolvency matters for 7 years after the conclusion of the case administration and the officeholder's discharge of appointment.
Please read this section in addition to the main rights section.
Please note that where a subject access request relates to information held by the Insolvent entity prior to the officeholder's appointment, we are unable to assist as the data controller for personal data processed by the Company or Debtor prior to the Insolvency is the Insolvent entity.