Linda Hynes, employment lawyer with Ogier Leman writes a monthly feature for Legal-Island email subscribers providing handy precedents and checklists for subscribers to download and use.
This month’s topic focuses on data protection and Linda has prepared a sample policy to guide Legal Island subscriber on implementing or reviewing a workplace data protection policy. The sample policy sets out guidance in respect of employee data and also guidance for employees who themselves handle data and how this must be processed and maintained in accordance with the Data Protection Act 1988 and Data Protection (Amendment) Act 2003.
Linda also recommends that along with a data protection policy, employers should include an express clause regarding consent in respect of data protection in contracts of employment. If data will be transferred outside of the Republic of Ireland the employer should also include a specific consent relating to this in the clause.
Employers should be careful about the type of data they maintain and how it is secured. Information which may be accessed by employees through a data access request includes:
- performance reviews;
- records of grievance and/or disciplinary procedures;
- recorded discussions relating to promotion prospects;
- notes by management e.g. an individual employee’s redundancy selection;
- written or verbal references which an employer obtained from a previous employer;
- references given about a former employee’s employment to prospective employers;
- retained interview notes of prospective applicants.
If records are not correctly maintained then an access request could lead to a disclosure of embarrassing or damaging remarks in relation to performance or personal misgivings. Access requests by employees are becoming a popular tactic to decide whether there are good grounds to initiate any claim or to provide ammunition to support claims under the Unfair Dismissals legislation e.g. fair procedures.
Employers must be careful also when taking interview notes. Retained interview notes constitute the personal data of an unsuccessful applicant who may seek to challenge a recruitment process under the Equality legislation. Employers must be careful of the criteria used for selecting or not selecting a potential employee and keep an accurate note of the interview so that no presumptions of disability can be made if the interview notes are later required to be disclosed.
Click here to see the data protection policy prepared by Linda Hynes.
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Ogier Leman for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.