This may sound like a stupid question and I feel a bit daft asking it but we have a couple of staff who had disciplinary action taken against them 12 months ago and I now need to remove the documents from their files. Do I physically delete all reference to the incidents so that it can never be looked at again or should I just move to another 'Obsolete' file.
I know we can't refer to the incident again or use it against them in future issues but I just don't want to delete all evidence of it if I'm not supposed to!
Thanks
Rachel
Replies
Hi Rachel
Great question!
Employers should also take into account data protection issues when dealing with expired disciplinary warnings. The Information Commissioner's Employment practices data protection code suggests that, where disciplinary procedures provide for warnings to expire, it should be made clear if the warning is to be removed entirely from the employee's personnel record or if it is simply to be disregarded in determining a future disciplinary penalty i.e it can be left on file but disregarded.
If the former, the employer should put arrangements in place to ensure that deletion actually does takes place when the warning expires.
I've worked in organisations where they have taken both approaches left it on file but advised it would be disregarded and physically removed from the file and destroyed.
Interestingly there was a case where a previously expired disciplinary penalty was taken into consideration:
In Airbus UK Ltd v Webb [2008] IRLR 309 CA the Court of Appeal overturned the employment tribunal and Employment Appeal Tribunal (EAT) finding that a dismissal as a result of an expired warning must be unfair. The employer had dismissed the employee primarily because of his misconduct, not because there was an expired warning. The extent to which the expired warning is taken into account by the employer will be a determining factor in assessing fairness. The Court of Appeal did specify that expired warnings should not be relied on as a matter of course.
I hope this helps I found the info on XpertHR
All the best
Sarah
Really good question!
Thanks ladies. I am pleased I asked :) I am going to remove from their files but create an anonymous file for such documents, as Karen has suggested.
I would still be interested to see what others do though.
Hi Rachel,
Not a stupid question - I didn't think anything had to be physically deleted so this has highlighted to me that I might be doing it wrong!
I'll always make sure that when any sanction has expired it's no longer referred to when discussing that individual (i.e. it's not used against them in any way), but I still keep copies of all the documentation - as Karen says below, it's always useful to have past cases (whether live or expired) to use as guidance for the future.
Interested to follow and see what other feedback you get!
Many thanks
Becky
Hi Rachel,
Yes you need to delete the record from the individuals file, however, for the HR department you can keep an anonymous record of the incident and action taken. This can be useful for any future and similar incidents and to ensure a consistent approach across the business. It can be particularly helpful when you have an incident that has never occurred before and therefore the case will set the precedent for going forward. Hopefully that makes sense!
Karen
Hi Rachel, it's not a daft question, it's one of those fiddly little procedural things, and best to check I think.
From what I understand the records should be struck off completely, therefore deleted from your system. This is so that records that have expired won't be seen by, say, a new Line Manager, who may then make pre-judgements against that employee. This is how it was explained to me, though I'd be interested to hear what others have to say.
Chrissy