The General Data Protection Regulation (“GDPR”) comes into force on 25 May 2018.
It is important for all employers to assess their data obligations and review the records they are retaining.
Employers, as data controllers, must be clear about the length of time for which pre-employment, employment records and post-employment records are being retained, and also, why that information is being retained.
What to consider when deciding on Retention Periods
When considering retention periods, employers should be guided by employment and other law and the statutory retention periods arising from these laws.
Limitation periods should also be taken into account.
The needs of the business must also be taken into account.
Of course, the GDPR principles in themselves should be taken into account.
Statutory Retention Periods for HR Data
There are various statutory requirements in terms of timeframes for the retention of HR records, for instance;
- Terms of employment: duration of employees employment )Terms of Employment (Information) Act, 1994) (see note below)
- Annual Leave and Public Holiday records: 3 years
- Carer’s Leave records: 8 years
- Parental Leave records and Force Majeure Leave records: 8 years (Parental Leave Acts, section 27)
- Hours Worked and related information such as breaks, annual leave and public: 3 years (The Organisation of Working Time Act, 1997, Section 25, and the Organisation of Working Time (Records) Prescribed Form and Exemptions, Regulations 2001
- Payslips: 3 years (National Minimum Wage Act, Section 22)
- Employment Permit records: 5 years of for the duration of the employment (whichever is the longer)
- Employment records of young persons under 18: 3 years
- Collective redundancy information: 3 years
- Taxation Records: 6 years ( Companies Acts and Taxes Consolidation Act)
- Accidents: 10 years from date of an accident (the Safety health and Welfare at Work (General Applications Regulation 1993, section 60)
You should ensure that you retain other relevant HR details for a period of a year in the event of a dispute and to defend any actions that may be taken by the employee against the employer in the employment forums such as the WRC.
The Statute of Limitations, 1957 provides for a limitation period of 6 years from the date of breach of contract. Therefore, contracts should be retained for a period of at least 6 years from the date of termination of the employment.
There is a two year limitation period on taking personal injuries claims.
In a situation where there was an accident or injury, employers are advised to keep the records for 10 years after the date of the accident.
If you do not have the data then you do not have the basis of a defence in the situation where a case is taken against you and a court will very likely take the position that you should have the records and will rule against you.
Pre-Employment Records – Applications and CVs etc.
The employer must also keep records on candidates who have applied for positions within the organisation, even where the applicants have not been successful in order to defend any potential claims for discrimination etc. The Data Protection Commissioner considers a retention period of 1 full year to be appropriate in situations like this.
In relation to retaining signed documents, it would be best to keep any original, signed documents on file as per the timeframes outlined above.
Data Retention Policy
There is need for a data retention policy and adherence to that policy in terms of the basis on which the employer is retaining records, the securing, accessing, and deleting records from storage in all forms.
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