GDPR week 2 – Disciplinary and grievance records
The Information Commissioner says that, under GDPR, organisations need to document retention schedules for the different categories of personal data.
As we explained in week 6 the Information Commissioner says that, under GDPR, organisations (as data controllers) need to document retention schedules for the different categories of personal data. Information concerning disciplinary and grievance issues is no different to other types of data that you may retain about your employees but you do need to give special consideration to how long you will retain the data and what you will use it for and ensure that it is destroyed in accordance with the schedule you have set.
Remember that within disciplinary and grievance matters there will be a wide range of data collected including:
- Statements from witnesses
- Emails and other communications
- Computer records depending on the allegations/complaint
- Notes of the hearing
- Outcome letter
- Appeal paperwork, hearing notes and outcome.
You must ensure that the data is only used for the purposes you have told the employees it is being processed for. Your privacy notice should set this out.
We know that many employers struggle with how long (if at all) to retain expired warnings on file. It is often useful to retain details of expired warnings for a period of time as there are limited circumstances where a spent warning may be taken into account in future disciplinary matters. The Information Commissioner suggests that employers have a clear procedure for how expired disciplinary sanctions are dealt with. If your policies or letter confirming the warning say that spent warnings will be destroyed or removed from the personnel file it is important that you do so. However ideally your policies, privacy notice and letters should refer to warnings being spent but without detailing that the warnings will always disappear, which enables you to retain spent warnings in case they are relevant without breaching what you have said. As with many data issues it is sensible to have appropriate limits upon who can access such information.
When employment is terminated, you should keep an accurate record of the reason for dismissal and this should mirror what the employee was told. This may be relevant if the employee brings a claim or requests a reference in the future.
As a minimum disciplinary and grievance records should be kept for at least 6 months following termination of employment to ensure that you have all the relevant paperwork in the event a claim is brought against the organisation. However, there is certainly justification for retaining the records for longer given employees have up to 6 years to bring a breach of contract claim.
What is absolutely critical is to ensure that you have a policy and implement it. We know that the Information Commissioner is unimpressed by organisations that do not do what they say they are going to do. Therefore however long you decide to retain the records for, you need to ensure that destruction within that period is realistic for your organisation.
As with all employee data, security is of paramount importance. Once a disciplinary or grievance matter has been concluded it is important that the manager dealing with the issue returns or destroys their copy of the paperwork and a single central record is retained to avoid anyone being able to access it who has no legitimate reason to do so.
Should you require any guidance on this issue please contact Claire Hollins (claire.hollins@weightmans.com) or your usual Weightmans contact.