First Tuesday Q&A

The claimant was dismissed by reason of gross misconduct and in particular.

Can an employee refuse to log on to Facebook via shoulder surfing?

Posted in: First Tuesday Q&A NI on 02/09/2015 Looking generally at this very topical area, being the use of social media in the workplace, a string of recent cases have provided a potent reminder of the perils of posting about your workplace or colleagues, especially where this is in clear breach of your employer’s social media policy. What ha...
This article is listed under the following topics:
Data Protection and Freedom of Information Act Policies and Procedures

What is the time frame for retaining employee information after employment has ended?

Posted in: First Tuesday Q&A NI on 01/04/2014 The most appropriate way to consider this query is to look at the retention of employee information generally. Under the Data Protection Act 1998 records must be kept for a set period of time. The Act does not however set out any specific minimum or maximum periods for retaining personal data. Inst...
This article is listed under the following topics:
Data Protection and Freedom of Information Act

What are the legal requirements when providing references, what are we obliged to do?

Posted in: First Tuesday Q&A NI on 04/03/2014 There is strictly speaking no legal obligation on an employer to provide a reference for an employee or ex-employee and employers are therefore generally entitled to refuse to provide a reference. There are however some limited exceptions to this general rule, such as: 1. Discrimination: Failure to...

I have a query regarding the anonymity of complainants/witnesses, particularly relating to disciplinary cases.

The original question related to two staff members complaining separately about a work colleague but neither of them wanted to be identified. In summary the answer outlined that the employer should investigate the reasons for the anonymity request and balance the complainant’s right of confidentiality with the accused right to a fair hearing.

The answer provided was very helpful, although it was silent on the issue of the Data Protection Act and personal data. Statements given by complainants or witnesses will contain information about the behaviour or actions of another employee and I wondered if that employee has particular rights under DPA (e.g. subject access) to see what has been written about him/her, or does the data belong to the witness/complainant or is there a balance to be considered?

I appreciate that all material may be required to be made available at Tribunal, but I am thinking here more of the internal disciplinary process.

Posted in: First Tuesday Q&A NI on 02/07/2013 Ideally all witness statements and other documents to be relied on should be made available to the employee before a disciplinary hearing. This helps to give the employee a full picture of the nature of the allegations and the case they have to meet. Obviously, if the employer has given a promise o...

Should Whistleblowing be added as a new policy to employee handbooks or as an addition to, for example, our Data Protection policy?

Posted in: First Tuesday Q&A NI on 05/02/2013 The whistleblowing legislation imposes no positive obligations on employers to encourage whistleblowing or to implement a whistleblowing policy. It merely requires them to refrain from dismissing workers because they have made a "protected disclosure" or subjecting them to any other detriment becau...

An employee does not wish to disclose her illness. 9 weeks of certificates stating, “unfit for work” have been received. Can a company doctor disclose the illness to the employer or can we insist on knowing the nature of the illness or move to dismissal or some other action?

Posted in: First Tuesday Q&A NI on 08/01/2013 Under the Access to Personal Files and Medical Reports (NI) Order 1991 (the Order) an employer cannot request a report from an employee’s own doctor without the employee’s consent, which should be recorded in writing. While referring an employee to a company doctor (which we assume to be the case h...

In what circumstances will an employment tribunal accept covert monitoring as evidence?

Posted in: First Tuesday Q&A NI on 02/10/2012 This question raises a number of issues and we are not told if the monitoring footage is within the workplace or outside. The Industrial Tribunal does not have formal rules of evidence about the admissibility of evidence but, if a party to the proceedings wishes to rely on recordings in support of ...

I have contacted Data Protection and they are unable to tell me what the time line is for retaining employee applications for jobs and employee files i.e. leavers. What is appropriate? She said we should have a data protection retention policy and state how long we keep files before they are shredded.

Posted in: First Tuesday Q&A NI on 02/11/2010 This response was correct. As there are no specific document retention periods provided in the Data Protection Act 1998 (DPA), it is down to each employer to set their own time limits for the holding and deletion of employee records within the constraints of any other specific legislative and best ...
This article is listed under the following topics:
Data Protection and Freedom of Information Act