Data and confidentiality
You have rights concerning the confidential information your employer holds about you – and what they say about you to others. If what they say is inaccurate or misleading, it could harm you. We will help enforce your rights, so you don’t lose out.
The Data Protection Act 1998 regulates how your personal data is held and used. Because your employer is required to store employee confidential records, they must comply with the Act. It is therefore important you be aware of what information your employer can hold about you, and your right to access that information.
What information can my employer hold?
The Act covers computerised records and some paper records too (provided they are held in a well structured ‘relevant filing system’). Sensitive or confidential personal data – information about your health, racial or ethnic origins, religion or belief, sexual orientation or criminal history – should not be in your personal file without your explicit consent. If you provided this information in a job application form or during an interview, it should be deleted from your personal file, unless your employer needs to retain it for legal reasons.
Your employer may have information about disciplinary warnings you received – even expired ones. However, they are obliged to ensure that data is not kept for longer than is necessary and should review whether it is necessary to retain it.
Employers must ensure the data they hold on you is:
- Fairly and lawfully processed
- Used for limited purposes
- Adequate, relevant and not excessive
- Not kept for longer than is necessary
- Processed in line with your rights
- Kept secure
- Not transferred to countries outside the EU without adequate protection
Your employer should tell you if personal data is being held about you and if so, how their information will be used.
How do I get to see the information?
You have the right to apply for a copy of any personal data that is held by your employer on a computer, your personnel file and information in memos, and emails about you. This is known as a ‘Subject Access Request’ and should be made in writing.
Your employer can charge a fee of up to £10 for each request and must provide the information within 40 days. Though the law will be changing in May 2018.
If your employer feels that your request is not justified, they should explain why. If you disagree with their reasons, you may be able to apply to court to decide whether you are entitled to access the information. However, your employer does not have to comply with all of a Subject Access Request if it would require them to disclose confidential information relating to an identifiable third party. Neither does an employer have to disclose information regarding any proposed pay rise, promotion, transfer, training or redundancy.
Recent case law states that employer’s obligation to carry out a search on receipt of a Subject Access Request is limited to what is ‘reasonable and proportionate’.
You also have the right to ask for information to be corrected or deleted from your personnel file if it is inaccurate. Your employer then has 21 days to remove the information. If they do not, you could apply for a court order to force them to correct or delete the information.
I was turned down for a job
You can see the information held about you by the prospective employer if you believe you were discriminated against in the application process. This includes the confidential notes made about you at interview.
My employer gave me a bad reference. Can I see a copy?
You are entitled to request a copy of a reference given about you – but if the reference was from a former employer, they are not obliged to provide you with a copy of it. You should make the request to your prospective employer who received the reference. We have seen many such cases and most people do not realise they have the right to see the confidential comments that have been made.
What do I do now?
This is where we come in. Employment law is all we do.
It can often feel like your employer holds all the power. They will likely have experienced HR professionals or a solicitor working in the background. That’s why you need the best support and advice available. You need a specialist employment lawyer – one who will push for your employment rights.
We understand how it feels. We have helped hundreds of employees and because we act for businesses too, we know the tactics you’re likely to face from your employer. We know every trick in the book.
FREE first advice
Have you ever wanted to just ask an expert employment law solicitor if they can help you, without worrying about what it may cost to contact them?
Together we can work out what your next steps might be...in confidence, at no cost and with no obligation.