The Data Protection Acts state that personal information held by a data controller (the Company/Organisation) should only be retained for as long as necessary for the purpose(s) for which the data was obtained. If the personal information is no longer needed, the data should be disposed of in a secure manner or deleted.
However, as the Data Protection Acts do not specify what the different retention periods are for the various types of data, companies are required to pay attention to the statutory obligations imposed on them through Employment Legislation when determining the relevant retention periods.
According to the Organisation of Working Time Act 1997, employers are required to keep several records in relation to employees’ leave and rest periods – Employers are obliged to record and keep details of Annual Leave, Public Holidays, Carer’s Leave, the hours worked by each employee each day as well as detailed records of start and finish times.
There are various requirements in terms of timeframes for the retention of these records, for instance;
- Annual Leave and Public Holiday records must be kept for 3 years
- Carer’s Leave records must be retained for 8 years
- Similarly, Parental Leave records and Force Majeure Leave records must be kept for 8 years
While there is no set period for the maintenance of Maternity or Adoptive Leave records, employers should ensure that they hold on to these details for a period not less than 12 months in the event that a dispute arises leading to a case – the time limit varies from 6 months to 12 months (in exceptional circumstances).
If, as an employer, you do not record employee working hours electronically (via a clock-in/clock-out system) you are required to complete a special form (an OWT1 form or a form not dissimilar to this) on a daily/weekly basis.
In relation to retaining hardcopy documents, it would be best to keep any original, signed documents on file as per the timeframes outlines above.
The key here is to ensure that the documents are available in the event that an inspection is announced. The records must be presented in a format that an inspector could easily understand.
Employers who fail to keep records as outlined above are liable, on summary conviction, to pay a fine of up to €1,900.
As an employer, you must be able to prove that you have informed each worker of his or her rights to rest/breaks. You must also be able to show that you have informed each worker that untaken breaks must be reported to you as the employer (or a representative of yours e.g. a manager).
If an employee claims that he or she was unable to take a break during work then the employer is obliged to look at the reasons for this. The employer is also responsible for looking at any health and safety issues that could have arisen as a result of this. As soon as is reasonably possible, the employer must allow the employee to take the rest period that was due to them. If the employee does not take the rest period at this stage then the matter is closed as the employer has fulfilled his or her duty by allowing the employee to take it.
Employers must even keep records on candidates who have aplied for positions within their company – even where the applicants have not been successful. The Data Commissioner considers a retention period of one full year to be appropriate in situations like this.