There has recently been a great deal of media coverage about organisations losing data, and as a result we receive many enquiries about data protection and in particular, how long employers should keep employment data and records.
The Data Protection Act 1998 itself does not specify any particular retention periods for employment data and records. However, it does specify that personal data should not be kept longer than necessary for the purpose for which it was processed.
It is recommended that employers assess retention times for different categories of employment data for job applicants, current employees and former employers. The retention times should be based on business needs, taking into account relevant professional guidelines and a risk analysis approach. When records are disposed of, this should be done securely and effectively, particularly with sensitive information.
Here are some common enquiries we receive and our answers:
- 1. How long should we keep job applications and interview records of unsuccessful candidates on our files?
These only need to be kept for a relatively short period, perhaps 6 months after notifying unsuccessful candidates. This period takes into account the fact that a job applicant can bring a claim for discrimination in the Employment Tribunal within 3 months from the date of the rejection for the role, but also that this time limit can be extended where a Tribunal feels it is just and equitable to do so.
If you wish to keep CVs for future reference in case another post arises then you must ensure this is notified to the job applicant, they are informed of how long their CV will be kept on file and make it clear that the individual can object to their details being retained.
- 2. An employee has left. How long should we keep their personnel record (which includes training records, appraisals, their contract of employment, annual leave records etc) on our files?
Generally, these should be kept for the duration of the employment and for six years after the employment terminates. This takes into account that there is the possibility that any documents relating to an employee could be relevant to a Tribunal, County Court or High Court claim, for up to six years after termination of employment. The Information Commissioner considers this as acceptable on the basis that an employer is keeping information to protect against legal risk.
You should also note that data collected for monitoring aspects, such as equality in the workplace, should be kept in an anonymised format.
- 3. How long should records of disciplinary matters be retained?
We are often asked whether a written warning that has expired should be deleted entirely from a personnel file. Although a written warning may have expired, this does not necessarily mean physical deletion of the relevant documentation should occur and in fact it is advisable to retain such documents on personnel files. This is because there is case law that gives limited scope for an employer to take into account previous similar misconduct in deciding whether to dismiss an employee for subsequent misconduct. Therefore, it is useful to retain documents relating to warnings on file to build a picture of an employee’s disciplinary record. However, when issuing a written warning it should be made clear that although the warning will only remain ‘active’ for a certain period, it will remain on the employee’s personnel file.
- 4. What about other specific documents such as PAYE records?
As before, it is for an employer to assess retention times based on business needs, taking into account relevant professional guidelines and a risk analysis approach. Records such as PAYE, maternity pay or statutory sick pay can be important in regard to review by HMRC and so generally they should be kept for at least 3 complete years after the end of the tax year in which payments are made.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team on 01243 836840 or [email protected].