Most employees and some employers are not aware that employees generally have a right to access the information in their personnel files. This right of access under the 1998 Data Protection Act applies whenever personnel files are kept in a filing system under which specific data about individuals can be readily extracted. The Act also applies to any computer records kept about employees.
The employer does not have to supply the information in the employee’s personnel file unless they have received a written request from the employee. The employer can charge a fee up to a maximum of £10 and has 40 days in which to comply with a request for a copy of the personnel file.
There are some items on the personnel file to which the employee does not have access. This includes confidential personnel references, data held for the purposes of management planning, data about negotiations with an employee and documents protected by legal professional privileges including any legal advice. Although these exemptions may help employers protect sensitive information, there are still many circumstances where difficulties may arise. The personnel file may contain records or internal correspondence about an employee’s performance or conduct which may have been written on the assumption that they would not be viewed.
The employee’s right to access their personnel file continues after the end of their employment. An employee who is bringing a claim for unfair dismissal or discrimination may require the employer to disclose all of their personnel file (with the exception of exempt items) and there may be information in the file which is supportive to their claim. Given the legal position under the Data Protection Act, employers need to ensure that the information retained in their personnel files is information that could be disclosed to an employee without legal difficulties or other damaging consequences.