Sun 29 Jan 2023

How long is too long to hold on to employment records?

The recent case of Health and Safety Executive v Jowett has brought into focus the question of how long should employers hold onto employment records? 

The claimant had successfully brought a breach of contract claim against the respondent relating to the withdrawal of an offer of employment.  The claimant had, some 10 years earlier, undertaken the same role for the same employer but had left before his training completed.  At the remedies hearing the respondent wanted to rely on documents relating to the previous period of employment that had finished in January 2011 to demonstrate that it was unlikely the claimant would have remained in employment with them for a period of 5 years, had the employment offer not been withdrawn.

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On finding that the respondent had retained this historical information, the claimant complained to the Information Commissioners Office ("ICO").  In response he received a reply indicating that "the ICO consider it likely to be the case that the HSE have breached data protection by still retaining your past employment information (from prior to 2011) at the time of your complaint to the ICO".  Although an Employment Judge had initially considered the records to be inadmissible, on appeal on that point to the Employment Appeal Tribunal ("EAT"), it was held that the records could in fact be relied upon at the remedies hearing.  Something of a silver lining for the respondent given their likely data protection breach.

So where had the respondent gone wrong in terms of their retention of the documentation?  Data protection law does not set any specific timescale after which employment records must be deleted.  If statutory retention periods are to be used as a guide for retention of employment records then this means there will be different retention periods required depending upon the type of record.  For example, there is a statutory retention period of 6 years for furlough records, whereas the retention period for national minimum wage records is 3 years after the end of the pay reference period following the one that the records cover. It should be noted that these are statutory minimum periods and employers may well have justification for retaining records for longer periods. 

However, there is no statutory retention period for many other types of HR record - it is left to the employer to decide how long retention can be justified for.  This will often relate to the limitation periods for making claims.  For example, an employer may wish to retain documents relating to unsuccessful job applicants for at least a period of a year to allow for potential claims under the Equality Act 2010 including the possibility of an extension to a time limit for bringing a claim. 

The key consideration for employers should be whether or not a need to retain the employment record in question can be justified in the particular circumstances. Some organisations may be able to justify longer periods for retention depending on the particular circumstances they are in.  It was highlighted in the Jowett case that in the case of statutory regulators, such as the respondent in the case, the statutory role of the organisation can mean that it is necessary for the organisation’s employment records to be retained for longer to avoid prejudice to their past and ongoing statutory functions (albeit that didn't apply in the case of the claimant's old employment records).

Employers should always keep the length of time employment records are retained under review and make retention periods clear to staff.  In doing so, they should consider the purpose for the retention period and securely delete the information once it goes out of date.  The current employment practices code provides useful guidance on the retention of employment records.  This guidance is in the process of being updated with consultations on its replacement currently ongoing.  It is anticipated the new guidance will be finalised later in 2023.

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