Childcare Counsel - GDPR for records, staff relationships

Q How long can records of ex-employees be retained for?

A Personal data should be kept for no longer than is necessary, but there are no specific limits set out in GDPR or the Data Protection Act. The Information Commissioner’s Office has published a good practice code on retention of employment records. In some cases, there are minimum retention periods (for example, with immigration checks and PAYE).

A risk analysis should be done to determine the retention periods for different types of data, with those periods then set out in a policy.

Nurseries will often retain data for up to seven years after the employment has ended to ensure that it has access to it in the event of litigation. However, there is no justification for retaining some data, e.g. bank details.

Q Two staff members who ended a relationship are now unable to tolerate each other. What can we do?

A In the first instance, it is often appropriate to seek to address the matter on an informal basis, reminding them that they must both conduct themselves in a professional manner. Further, that disciplinary action could result if they persist in bringing their personal issues into the workplace. If this does not resolve the matter, then the nursery’s formal disciplinary procedure should be invoked.

It is important in addressing the issue that the nursery acts in a balanced manner and does not take sides, which could result in claims of unfairness and discrimination (for example, if a female member of staff is moved to another room but the setting takes no action in relation to a male member of staff). Further, in some circumstances, conduct directed towards a staff member in a situation where there has been a breakdown in a personal relationship can amount to unlawful harassment for which the nursery could be liable. It is important therefore that any grievances that are raised in these circumstances are taken seriously, quickly investigated and action taken to resolve them.