Access to Personnel Files
Most employees and some employers are not aware that employees generally have a right to access the information in their personnel files. This right of access under the 1998 Data Protection Act applies whenever personnel files are kept in a filing system under which specific data about individuals can be readily extracted. The Act also applies to any computer records kept about employees.
The employer does not have to supply the information in the employee's personnel file unless they have received a written request from the employee. The employer can charge a fee up to a maximum of £10 and has 40 days in which to comply with a request for a copy of the personnel file.
There are some items on the personnel file to which the employee does not have access. This includes confidential personnel references, data held for the purposes of management planning, data about negotiations with an employee and documents protected by legal professional privileges including any legal advice. Although these exemptions may help employers protect sensitive information, there are still many circumstances where difficulties may arise. The personnel file may contain records or internal correspondence about an employee's performance or conduct which may have been written on the assumption that they would not be viewed.
The employee's right to access their personnel file continues after the end of their employment. An employee who is bringing a claim for unfair dismissal or discrimination may require the employer to disclose all of their personnel file (with the exception of exempt items) and there may be information in the file which is supportive to their claim. Given the legal position under the Data Protection Act, employers need to ensure that the information retained in their personnel files is information that could be disclosed to an employee without legal difficulties or other damaging consequences.
There is a general obligation under the Data Protection Act to ensure that all information in a personnel file is accurate and kept up to date. There is also a general requirement that the information should not be kept for longer than is necessary. This latter obligation causes some practical difficulties. It is sometimes helpful for an employer to retain copies of written warnings against an employee that have expired through time. In these cases, the best advice is to put a clear note on the warning letter that it has expired so that the contents of the personnel file are not misleading.
The employee who believes that the employer has failed to comply with the obligation under the Data Protection Act, or failed to provide information that has been legitimately requested, can make a complaint to the Data Protection Commissioner.
October 2008
This article gives a general overview only and the legal position at the time of writing this article. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print. For further information and advice, please contact Paul Archer or Lauren Harkin on 01793 527141 or alternatively by email on Paul.Archer@lemon-co.co.uk or Lauren.Harkin@lemon-co.co.uk.
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