How long should we keep interview notes after the recruitment process?

Posted in : Seamus Says - Employment Law Discussion on 7 June 2019
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

I was on a selection interview training course and was advised that we should be keeping interview notes for up to 12 months. We have been told in the work not to keep notes and have incorporated a score sheet system where we summarise each candidate and the reasons for successful/unsuccessful at interview. Would this be sufficient, or do you recommend keeping each interviewer's notes?"

Seamus:  Well, in terms of the first part of the question, where they say that they've been advised to keep the interview notes for up to 12 months, I think guidance tends to be that it's 6 to 12 months. Obviously, look, out of any recruitment process, there's the potential of an employment tribunal claim. So you should be sort of keeping that within the time frames as to what might happen. Six to 12 months tends to be the guidelines in relation to it.

As regards this aspect of not retaining the notes but maybe putting together a pro forma sheet outside of the notes then destroying the notes, and I am uneasy with that, I have to say. Ultimately, if you end up with a claim situation, it could look problematic and look a little bit suspicious as to why you don't have the notes. And even if you say, "Well, I was told to destroy the notes," there might be a question as to why we are told to destroy the notes. And it just raises that suspicion of, you know, the notes form part of the process. They're the record of what of what the panel or what the individual person maybe found impressive or the responses that were given.

And for me, it just tinges a process whenever the notes are not available. It automatically puts the suspicious antenna up and you're thinking to yourself, "Well, what's the problem here?" If you have the notes and the notes are clear and you provide them, it answers the questions that are being asked. If you don't have the notes, it allows the whole content to be filled by . . . there's a problem here, that the notes aren't there.

But just in general under GDPR, just when you're coming to recruitment, the advice very much is that whenever you're setting up a recruitment process, that you should be issuing an information notice or a privacy notice or processing notice, whatever you like to call it, but the notice must provide the applicant with certain information. And that should be what the purpose for which the data will be processed, the legal basis for processing, and the period of retention. And there should be a policy and procedure in place, set out how long the recruitment data will be retained. That should be clear from the outset.

And the employer is going to need to retain some candidate data in relation to potential claims. That doesn't mean it needs to retain everything. But you destroy what's not going to be needed, but my view would be that you're not leaving yourself in a problematic situation. Now if there is a claim, that you don't have the backup, you don't have your notes, you don't have your order trail, you don't have the paperwork to establish what exactly went on, it leaves you in a difficult position.

Sometimes employers do retain information of unsuccessful candidates for sort of future recruitment exercises. And that's okay, provided that you're notifying the applicants that you're doing that and that they're either given the ability to consent or to object to that. And if they object, then you're obviously having to destroy. But the bottom line is, you're retaining the minimum data required for the retention period that you've set out, and that should be it. But ultimately, answer to the question is I would be keeping the notes. I don't understand why you'd be destroying them.

Scott:  Yeah, there's nothing wrong with having a summary of conclusions, but you want to keep the notes to back them up. I'm sure the Equality Commission, if they came and there'd been a number of complaints in an organisation and they hadn't kept any notes, then they would be arguing that the tribunal should infer that there's been discrimination taking place. And of course, there's no limit on the awards in discrimination bans that we discussed last week, or last month, have just gone up.

Just on the chat box there, to the person who says, "Why don't the questions appear in this box," they appear at the box at my end here. So we can read all the questions out but you don't see all the other questions. They're all anonymised at our end. But if you do have any questions, send them in. I'm not sure we'll have time to deal with any more this week, bar one, which is kind of related to data protection but it's also to do with disciplinary warnings.

This article is correct at 07/06/2019

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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