You can rest assured you’re not alone and for those of you who keep up to date with the filing, are you confident that the data stored within them is compliant with the Data Protection Act 1998?
With employees having the right to make a ‘Subject Access Request’, it’s probably best to have all your ‘ducks’ or as we like to be a little different ‘owls’ in a row!
What records should you keep in an employee’s personnel file?
Well the 5th data protection principle provides instruction to employers that “personal data processed for any purpose or purposes shall not be kept longer than is necessary for that purpose or those purposes”. Essentially, this is like that word – you know the one… “reasonable” where there is no quantifiable value or time attached to it, but if you have a valid purpose to retain that data then it’s OK.
Data Protection is a topic for another day but I just wanted to point this out to help put the requirement into context.
So, just what should be in a personnel file?
Well before you even get an employee, you have to go through the recruitment process and did you know that a candidate can pursue a discrimination claim against you even when they are not an employee? Discrimination is one of those claims that does not require the normal 2 years’ length of service qualifying period and a claimant has 3 months to bring the claim (which if successful provides for an uncapped award) to the employment Tribunal so it would be ‘reasonable’ to expect you to keep these records for 3-4 months.
It’s quite normal to expect a personnel file to contain a copy of all recruitment notes, application form/CV, personal details, offer letter, signed contract, induction records, next of kin details, job description, person specification of the job the employee holds, training records, qualifications and certificates, self-certification and fit notes, 48 hour opt out forms, salary details, health & safety, medical records, appraisal records, performance management notes and records, statutory records (which have their own time limits) such as tax and national insurance, working hours and any other data relevant to an employee. This list is not conclusive.
Note: Be careful as some information is classed as sensitive data, make sure your employees’ know what data you hold for them, this can be done in a staff handbook for example.
Disciplinary warnings – these can be kept for longer than the period they are valid but an employee must be informed of the period they are actually live and what will happen to them afterwards, advice would be for employers to be aware of the Acas Code of Practice.
This is just a very brief overview to provide you with some insight as to how compliant (or not) you are.
If you believe your business would benefit from a personnel file audit and some further guidance on your obligation as an employer then please get in touch with us to discuss how we can help.
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