Can Tribunals consider employee data unlawfully retained?

Data Retained in Breach of Data Protection Rules – Admissible as Evidence in Court?

Recently, the Employment Appeal Tribunal (EAT) has held that a Respondent who kept employee data for over 10 years may have breached data protection rules, but also held that such data could still be admissible as evidence in Employment Tribunal proceedings.

Facts & judgment in the case

In the case of Health and Safety Executive (HSE) v Jowett, Mr Jowett was offered a job at the HSE, but the HSE withdrew the offer before Mr Jowett could start work. Mr Jowett successfully brought a disability discrimination claim against the HSE for withdrawing the offer and, in respect of remedy, Mr Jowett claimed five years’ loss of earnings.

In defending the claim for loss of earnings, the HSE submitted records relating to Mr Jowett’s previous employment with the HSE as evidence to show that Mr Jowett would not have remained in this job for five years. Mr Jowett previously worked at the HSE from April 2008 to January 2011 and resigned from his role. At a preliminary hearing, the Tribunal ordered the documents relating to the previous period of employment should not be admitted at the remedy hearing. The judge considered that while some of the documents might be relevant, this would be marginal at best.

Mr Jowett had also complained to the Information Commissioner Office (ICO) about the retention of the documents relating to his previous employment and their processing by the HSE’s solicitors. The ICO considered it likely that the HSE had breached data protection requirements by continuing to retain his employment information (from prior to 2011) at the time of his complaint to the ICO (3 November 2020), however, they confirmed that the question of admissibility was for the Tribunal to determine.

The HSE appealed to the EAT regarding the decision not to allow the documents to be considered at the remedy hearing on the basis that the Judge had failed to apply the guidance on the assessment of future loss of earnings.

The EAT allowed the appeal and substituted an order that the documents were admissible and could be relied on by the parties at the remedy hearing. The EAT highlighted the importance of striking a balance between an employer’s entitlement to rely on evidence and their obligations under data protection laws, and held that:

• The ICO’s reference to the HSE’s retention of the documents relating to Mr Jowett’s first period of employment being likely to be in breach of data protection requirements was not significant; and
• In so far as the HSE was in breach of data protection law, it did not follow that the documentation was inadmissible in the Tribunal proceedings, particularly since use of material in litigation falls within a data protection exemption. The primary consideration remained the relevance of the material to the issues before the Tribunal.

How long are employers entitled to retain records relating to employees?

Neither the UK GDPR nor the Data Protection Act 2018 prevent an employer from collecting and retaining data about employees. However, it is important that employers seek to strike a balance between the need to keep records and the employee’s right to respect for their private life.

Some information will be subject to statutory retention periods, such as 5 years for Health and Safety representatives and employees’ training records or 6 years from the end of the relevant tax year for payroll wage/salary records. Most other employment records are not linked to specific retention rules and are at the employer’s discretion to decide and justify their individual retention timescales.

As such, the UK GDPR suggests that, in order to ensure that data is not kept longer than necessary, time limits should be established for erasure or for a periodic review. This should be done by way of a data retention policy.

The EAT’s decision in this case is a useful reminder for employers to make sure they have appropriate retention guidance in place covering data retention periods and periodical reviews to remove any data that is no longer appropriate or necessary to keep. However, ultimately, it is the relevance to the proceedings and issues under consideration which will determine the admissibility of any evidence, not whether an employer has retained data for longer than strictly speaking was necessary.

For further information on these topics or to discuss the issues raised in this update, please contact our Employment Group on 01276 854663 or email employment@herrington-carmichael.com.