Data Protection Questions arising from Knowledge November series

by | Nov 27, 2015 | News

Question: I guess it’s possible for a former employee to make a request, so I wondered if you could advise how long we should keep records for?

Answer: Yes – making a subject access request relates to an individual’s position as a data subject – it doesn’t relate to their being an employee so once they leave they can still make a request.

The Data Protection Act suggests you should not keep data for any longer than is necessary. I’ve put together the following table to suggest why you might need to keep data for perhaps longer than the Information Commissioner might envisage:

Type of employment Statutory or Code of Practice reference Format and location Retention period or recommendation
Job applications and interview records for unsuccessful candidates The Information Commissioner: Employment Practices Code Part 1: recruitment and selection (1.7.5) Paper or electronic A short period, perhaps 6 months after notifying unsuccessful candidates or longer if there is a clearly communicated policy to keep candidates CVs for future reference. Application form should give applicants the opportunity to object to details being retained
Personnel and training records N/A Paper or electronic While employment continues and up to six years after employment ceases
Written particulars of employment, contracts of employment, and changes to terms and conditions N/A Paper or electronic While employment continues and up to six years after employment ceases
Working time opt-out forms Regulations 5 and 9 Working Time Regulations 1998 (WTR 1998) Paper or electronic originals are not required by the WTR 1998 Two years from the date on which they were entered into
Records to show compliance with the WTR 1998 Regulations 5, 7 and 9 WTR 1998 Paper or electronic Two years after the relevant period
Annual leave records N/A Paper or electronic Six years or possibly longer if leave can be carried over
Payroll and wage records for unincorporated businesses Sections 12 and 15 Taxes Management Act 1970 Paper or electronic Five years after 31 January following the year of assessment
Payroll and wage records for companies Schedule 18, paragraph 21, Finance Act 1998 Paper or electronic Six years from the financial year-end in which payments were made
PAYE records Regulation 97, Income Tax Regulations 2003 Paper or electronic Not less than three years after the end of the tax year to which they relate
Collective workforce agreements N/A Paper or electronic Permanently
Works Council N/A Paper or electronic Permanently
Maternity records Regulation 26, Statutory Maternity Pay (General) Regulations 1986 Paper or electronic Three years after the end of the tax year in which the maternity pay period ends
Sickness records required for the purposes of SSP Regulation 13, Statutory Sick Pay (General) Regulations 1982 Paper or electronic Three years after the end of the tax year in which payments are made
Absence date showing dates of sick leave The Information Commissioner: Employment Practices Code, Part 4: Information about workers’ health Paper or electronic While employment continues and up to six years after employment ceases.  Data may need to be made anonymous for data protection purposes
Sickness, medical and health records The Information Commissioner: Employment Practices Code, Part 4: Information About Workers’ Health Paper or electronic While employment continues and up to six years after employment ceases.  Records should be kept separately from absence data
Current bank details N/A Paper or electronic No longer than necessary
Record of advances for season tickets and loans to employees N/A Paper or electronic While employment continues and up to six years after repayment
Death benefit Nomination and Revocation Forms N/A Paper or electronic While employment continues or up to six years after payment of the benefit
Any reportable accident death or injury in connection with work Section 7, Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 Paper or electronic For at least three years from the date the report was made
Records in relation to hours worked and payments made to workers Section 9, National Minimum Wage Act 1998

 

Regulation 38, National Minimum Wage Regulations 1999

 Paper or electronic Three years beginning with the day upon which the pay reference period immediately following that to which they relate ends
Consents for the processing of personal and sensitive data Schedule 1, DPA Paper or electronic For as long as the data is being processed and up to 6 years afterwards
Criminal Records Bureau checks and disclosures of criminal records forms ROA and Information Commissioner’s Employment and Practices Code Part 1.7.4 and 2.15.3 Paper or electronic Should be deleted following recruitment process unless assessed as relevant to ongoing employment relationship. Once the conviction is spent, should be deleted unless it is an excluded profession

In relation to pensions information the Pensions Regulator suggests e.g.:- booklet 9 on auto-enrolment that you keep information for 6 years. Pensions Trustees will need to keep information for 5 years after the 31st January filing date.