1. Introduction
Section 3(5) of the Terms of Employment (Information) Act 1994 requires employers to retain a copy of the written statement provided to each employee for the duration of the employment and for one year after termination.
This article considers the record-keeping requirement, its interaction with data protection law, and the practical implications of a failure to retain records.
2. Legislation and Case Law
Section 3(5) of the 1994 Act provides that the employer shall retain a copy of the statement provided to the employee for the duration of the employment and for a period of one year thereafter.
The General Data Protection Regulation (EU) 2016/679 and the Data Protection Act 2018 require that personal data be retained no longer than is necessary for the purposes for which it was collected. Employment records, including the written statement of terms, are generally retained for the duration of employment and for a defined period thereafter consistent with statutory limitation periods.
The Labour Court in Beechfield Private Homecare Limited v Megan Hayes Kelly TED1928 confirmed that the absence of a record can give rise to an inference adverse to the employer in proceedings concerning the substantive obligation to provide a statement.
Section 7 of the 1994 Act provides for compensation of up to four weeks’ remuneration where a complaint is upheld. The WRC may take into account the failure to keep records when assessing the appropriate level of compensation.
3. Decision
The WRC will examine whether the employer has retained a copy of the written statement provided to the employee. Where no copy can be produced, the inference is that the statement was not properly provided.
Where the employer claims that a statement was provided but no copy can be found, the WRC will assess the credibility of that claim against the surrounding circumstances. Mere assertion is rarely sufficient.
Compensation under Section 7 reflects both the substantive failure (if any) and the record-keeping breach. Awards typically reflect the combined effect.
4. Takeaway
Employers should maintain a personnel file for each employee that includes the signed written statement of terms, any Section 5 notifications, and any subsequent amendments. The file should be retained for the statutory period and accessible to authorised personnel.
Employees should request a copy of their written statement if they do not have one, and should retain copies of all employment documentation throughout and after their employment.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
Connect: @CrushellLaw or www.wordpress-576593-6594403.cloudwaysapps.com
