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For the record

first_img Comments are closed. For the recordOn 1 Dec 2003 in Personnel Today Related posts:No related photos. Previous Article Next Article Keepingemployment records can be costly – both financially and administratively. Butthrow them out too early and it could cost you. Matthew Rigg and Andrew MorganreportEmployersshould keep personal data for no longer than is necessary – a worthy aim. Nevertheless,this key principle of data protection legislation is leading to a new cultureof document destruction that could have unforeseen damaging consequences.  Using a hypothetical example, let’s examinepotential risks of this new enthusiasm for proactive housekeeping.ThinkingaheadIn2033 it is accepted that excessive exposure to some computer monitors can causecancer. The cancer commonly takes 20 to 40 years to develop. These types ofmonitor have now been banned, but they were in common use as late as 2010.  MrSmith has been diagnosed with cancer. He claims to have worked for Deskjob Ltdbetween 2000 and 2005 and believes that his exposure to computer monitorsduring this period is the cause of his disease. He sues Deskjob for personalinjury.Followingwhat it believes to be best practice, Deskjob destroys its employment recordssix years after the end of employment. It does not know whether it employedSmith and has no record of what Smith might have done for the company. FuturelitigationAnemployee who develops a work-related disease may commence court proceedings atany time within three years of the date he knew or should have known that hewas suffering from a significant condition. The estate of a deceased employeecan bring court proceedings within three years of the employee’s death. Thecourt has discretion to allow claims to proceed when court proceedings arecommenced outside the three-year period and have generally allowed diseaseclaims to proceed when there has been a delay of several years.Somediseases develop insidiously so the employee’s health might deteriorate slowlyover the years before he first sees his GP. If the GP diagnoses the conditioncorrectly, then the employee may have a further three years to start court proceedings.Otherdiseases do not start to develop until some years after first exposure. In thecase of mesothelioma (an asbestos-related cancer of the lining of the lung),the malignant transformation may not start until 30 or 40 years after firstexposure. The cancer will grow unseen for about 10 years before the employeedevelops clinical symptoms. Death will usually follow within 12 to 18 months. Retainingcertain classes of records helps employers to develop a considered approach toany claim. First, can the employer confirm from its own records that itemployed the employee? If so, then the claim is prima facie genuine. Doemployment records identify any previous or subsequent employer from whom acontribution can be sought? Do they show the employee was on secondment orcontracted-in or out so that an indemnity can be sought? These records count aspersonal data for the purposes of Data Protection legislation. There is anargument that such records be retained for many years or decades, but the documentretention policy must be justifiable within the matrix of the Data Protectionlegislation.Thereare other potentially relevant documents that do not contain personal data.Insurance policies are the obvious candidate for retention. If a claim fails tobe met under an insured risk then the employer avoids all liability if theinsurer is known and the policy available. Experienceshows that some employers have failed to keep track of their own insurancepolicies over the decades so they have to defend claims and pay damages out oftheir own funds. The protection they purchased through the payment of premiumshas evaporated because they retain no documentary proof of their entitlement.Otherdocuments may help employers decide whether or not to defend a bona fide claim.Such documents might include records of atmospheric sampling, noise levelreadings, radiation levels and similar quantities in environments where thereis a known risk. They might include details of training and warnings given orwritten records of best practice. These might not be conclusive evidence in theemployer’s defence but they might be persuasive in court or might simply helpthe employer decide how to manage the claim.  Arecent employment tribunal case has shown that it is not just personal injuryclaims that can be brought many years after the events that gave rise tothem.  Generally, claims brought in theemployment tribunals must be brought within three months of the date oftermination of employment (unfair dismissal claims) or within three months ofthe act of which the applicant complains (discrimination claims). These timelimits can be extended in certain circumstances. In a recent case involvingrace discrimination, the Court of Appeal refused to overturn a tribunal’s decisionthat it was just and equitable to allow the claim when it was brought nineyears after the acts of which the applicant complained (Southwark LondonBorough Council v. Afolabi (CA, 24/01/2003)). Sowhy are employers destroying employment records? Cost. Historically, businessesdestroyed documents to reduce storage costs. Computer databases, scanningtechnology, CD-Roms and DVDs now make it possible to store and retrieve vastamounts of employment records cheaply and conveniently. Cost is no longer the onlyfactor pushing employers to destroy employment records.TheData Protection Act 1998TheData Protection Act 1998 regulates the processing of personal data. The Act’sdefinition of ‘processing’ is extremely wide and covers any handling of data,including simply storing it. To qualify as ‘personal data’, information must beheld on computer or recorded as part of a ‘relevant filing system’ and relateto a living individual who can be identified from the data (or can beidentified from the data and other information that is in the possession of oris likely to come into the possession of the data controller).  Inpractice, almost all information that an employer holds about its employeeswill be personal data. The definition of ‘relevant filing system’ would includean organised set of personnel files. E-mails relating to named employees andpayroll information that names employees will also be personal data.Information that cannot lead to the identification of a living individual isnot personal data. This might include, for example, data collected for ethnicmonitoring purposes that is held in an anonymised form. Thebackbone of the Act is eight data protection principles. The fifth principleprovides that ‘personal data processed for any purpose or purposes shall not bekept for longer than is necessary for that purpose or those purposes’. Unlikemost of the other data protection principles, there is no further explanationof the fifth principle in the Act. However, where the data controller is anemployer, the data subject is an employee and the personal data in question arerecords relating to employment, the employer can refer to Part 2 of theEmployment Practices Data Protection Code, which gives guidance on theretention of employment records.TheCodeTheCode makes clear that it falls primarily to the employer to set the periods forwhich it will retain employment records, but that any period that is set mustbe based on business need and should take into account any professionalguidelines.Thecode advises employers to establish and adhere to standard retention times forcategories of information held. In setting these retention times, employers areadvised to ensure that personal information is not kept for longer than isnecessary, but equally that it is not deleted where there is a real businessneed to retain it.  Thecode states that information should not be retained simply on the basis that itmight come in useful one day without any clear view of when or why. Instead,employers should consider what realistically will be the consequences for theirbusiness, and for the individuals concerned, should information that isaccessed only very occasionally be no longer available. This principle is easyto expound in theory but harder to implement in practice, as the example ofSmith and Deskjob shows.Thecode does not give any indication of what the standard retention times mightbe. The draft version of the code, published in October 2000, gave employersmore assistance. While acknowledging that these were guidelines only and that aspecific business case could support a longer period, the draft code specifiedlengths of time for which certain types of employment records should usually bekept. Tofollow the draft code would involve a yearly weeding of employee files (which,for large employers with paper files, could be time consuming) and would leavethe employer with no record of an employee 10 years after the employee’s departure.  This may be the reason why this method was dropped in favour ofthe less prescriptive approach in the final version of the code. The draft didgive some much-needed practical guidance on the sorts of retention times thatthe Information Commissioner might consider reasonable. StatutoryrequirementsTheAct does not override any statutory requirement to retain records. Employershave statutory obligations to keep certain records relating to statutory sickpay, statutory maternity pay, wages and hours of work. Health and safetylegislation also imposes record-keeping requirements on employers. Under theEmployers Liability (Compulsory Insurance) Regulations 1998, employers arerequired to obtain a Certificate of Employers Liability Insurance for 40 yearsbeginning on the date on which the insurance that it relates commences or isrenewed. Wherethere has been a known exposure to a noxious substance then furtherrecord-keeping duties may arise. For instance, under Reg 16(1) of the Controlof Asbestos at Work Regulations 1987, employers may have to create a healthrecord relating to each affected employee and keep it for at least 30 yearsfrom the date of the last entry made in it. Under Reg 21(1) of the Control ofAsbestos at Work Regulations 2002, the employer may have to create a record foreach employee who is exposed to asbestos at a level above the ‘action level’and keep a copy in a suitable form for at least 40 years from the date of thelast entry made in it. Particularstatutes are relevant to particular risks and industries, such as the Controlof Substances Hazardous to Health Regulations 1999 and the OffshoreInstallations (Safety Zones) Orders 1999. The legislature is sometimes quick torespond to health and safety issues as they arise by issuing secondarylegislation on an ‘issue-by-issue’ or ‘industry-by-industry’ basis. It pays tokeep informed, not only  to comply withthe legislation but also to keep in step with or ahead of best practice. Anydocument retention policy should evolve in step with developments in scientificknowledge, public policy and perception and legislative change.ConclusionItwould have been sensible for Deskjob to retain basic employment details(including names, dates of employment, National Insurance numbers and dates ofbirth) indefinitely. These details would at least have enabled Deskjob to admitor deny that it employed Smith. Because the court has discretion to allow lateclaims to proceed, there is no fixed period after employment has ended at whichit is safe to destroy all records.Asfar as more detailed records are concerned, Deskjob should have balanced therisk of a future claim against the cost and administration involved inretaining records and the possibility of enforcement action or a claim fordamages under the Act. If there is a known risk, employers should make greaterefforts to retain information relevant to that risk.Whenconsidering the risk of a future claim, employers might also like to considerthe likely consequences of a breach of the Data Protection Act.  It is difficult to see how simply keeping recordscould lead to any actual loss to the employee or ex-employee, so a damagesclaim is unlikely.  If the InformationCommissioner decides that the employer is in breach of the Act by retainingrecords, he may issue an ‘enforcement notice’ requiring the employer to destroythe records. However, provided that the employer complies with this notice, itis unlikely that there will be any further consequences.MatthewRigg is an employment lawyer and Andrew Morgan is a personal injury lawyer atCity solicitors Field Fisher Waterhouse. [email protected]last_img read more


Anderson wins SA Tennis Open

first_img7 February 2011A rain delay in the final of the SA Tennis Open at Montecasino in Johannesburg proved to be no obstacle to South Africa’s Kevin Anderson in his pursuit of the cup and the US$442 500 (nearly R3.2-million) pay cheque.Anderson faced India’s Somdev Devvarman, who refused to give up without a fight. Anderson came back from a disappointing first set loss to dominate the rest of the match, making the most of his hometown advantage to finish off Devvarman 4-6, 6-3, 6-2.The win has catapulted Anderson to an all-time career high in the world rankings, moving him up 16 places from 56 to 40. Devvarman’s impressive performance throughout the tournament also earned him a jump up the charts, landing him at 80.Devvarman was responsible for ousting the remaining South African players, wild cards Rik de Voest and Izak van der Merwe, in the quarter- and semifinals respectively. He defeated De Voest 3-6, 7-6(5), 6-1 and swept through Van der Merwe’s defence 6-2, 6-4.Anderson took on Slovakian Karol Beck in Friday’s quarterfinals and made easy work of the game, finishing 6-3, 6-1. In Saturday’s semifinals, he tussled with Adrian Mannarino from France, coming back from a tie-break loss in the first set to overwhelm the Frenchman 6-7(3), 6-0, 6-4.In the doubles segment of the tournament, James Cerretani from the USA and Adil Shamasdin from Canada stood firm to take the trophy. They defeated the American duo of Scott Lipsky and Rajeev Ram 6-3, 3-6, 10-7.Source: City of Johannesburglast_img read more