Employers are subject to strict rules regarding both disciplinary processes and record keeping. Navigating the various laws, regulations, and guidelines can be incredibly complex and full of traps for the unwary. Here, our HR experts answer the regularly asked question, ‘How long should an employer keep disciplinary records?’, explain the relevant law, and give tips on how to ensure compliance.
Call us now on 01491 598 600 or email us on cw@gaphr.co.uk and we will be delighted to help you.
What Are Disciplinary Records?
You must keep comprehensive records of each stage of a disciplinary process. Not only will this enable you to answer any questions your employee raises about the matter but will also assist you in defending any claim for unfair dismissal the employee subsequently brings.
Examples of the types of disciplinary records you may hold in relation to an employee include the following:
- Notes of the disciplinary meeting.
- Witness statements.
- Computer records.
- Emails.
- Your communications with the employee about the matter, including the letter notifying them of the disciplinary process and informing them of your decision.
What Are The Rules Relating To How Long Should An Employer Keep Disciplinary Records?
• ACAS Guidelines
ACAS has devised guidelines to assist employers with every stage of the disciplinary process. These guidelines provide information on the stages a disciplinary process should go through, including establishing the facts, investigating the issues, informing the employee, and holding a disciplinary meeting.
According to the ACAS guidelines, you must keep a record of all disciplinary matters, regardless of the outcome. You can use your records to answer any queries from the employee and as a reference when dealing with similar cases in the future. However, the guidelines expressly state that the records must be kept in accordance with data protection law, so you must only retain them for as long as necessary and ensure they remain confidential.
• General Data Protection Regulation (GDPR)
GDPR imposes limits on what personal information organisations can collect from individuals and how long they should hold the information for. Since an employee’s disciplinary records invariably contain personal information about the employee, you need to pay due regard to GDPR when considering how long an employer should keep disciplinary records.
A key principle of GDPR is that you must only keep an individual’s personal data for as long as necessary. The Regulation does not specify a time limit within which disciplinary records should be destroyed, but it is not in line with GDPR to hold on to information that is excessive or no longer relevant.
If the outcome of a disciplinary process is a written warning, many employers are unsure how long the warning should remain on the employee’s file once it has expired. Again, there is no hard and fast rule; you can keep it for as long as it is needed. In some cases, it may be appropriate to destroy the warning on expiry, whereas in others, it may be necessary to keep the warning on file to refer to in future disciplinary matters. The key point for employers is that they must have a clear procedure in place for dealing with expired written warnings, communicate that policy to the employee, and follow it in all cases. You should seek advice from experienced HR specialists if you are unsure of your obligations to ensure your decision accords with GDPR principles.
If the outcome of a disciplinary process is that you terminate the employee’s employment, it is sensible to retain the employee’s disciplinary records for at least six months so you have them to hand should the employee issue an unfair dismissal claim against you. However, given that an employee has six years to bring a breach of contract, it may be sensible to hold on to the records for six years following the termination of their employment.
What should an employer do to fulfil their obligations relating to disciplinary records?
How long an employer should keep disciplinary records is a tricky concept, but there are steps employers can take to ensure their compliance with the law. They include the following:
• Put Policies In Place.
You must have policies in place for dealing with disciplinary records, such as expired warnings. The policies should be reasonable and seek to strike a balance between the needs of your business and the rights of your employee. If you intend to keep warnings on file, you should periodically review the documentation to determine if it remains appropriate to retain it and, if so, for how long. Your policies must be reasonable, and you must adhere to them, so they must be realistic in the context of your organisation.
• Limit Access To Disciplinary Records
You should limit who has access to an employee’s disciplinary records to those staff members who have a legitimate reason for viewing them. This might include HR personnel, the employee’s line manager, and anyone considering the employee for a promotion. Anyone who accesses the records must adhere to data protection laws.
• Ensure Adequate Security
You must keep disciplinary records safe and store them securely, whether in hard copy or online. If multiple staff members have copies of the documentation, all copies should either be returned to a central storage place or destroyed so only one copy remains.
• Use Effective Methods Of Destruction
Once you have decided to destroy an employee’s disciplinary records, you must do so adequately. Any hard copies should be shredded, and any copies held online should be completely wiped from the system.
Our experienced HR specialists can help demystify your obligations regarding disciplinary records. We will explain your legal duties and devise policies that are both legally compliant and appropriate to the structure of your organisation.
Call us now on 01491 598 600 or email us on cw@gaphr.co.uk and we will be delighted to help you.
