We were recently recruiting and a rejected job applicant has demanded access to the interview notes we made about him. I told him that they are our notes and they have no right to this information. He interviewed very badly and our notes reflect this!
Under the subject access provisions of the Data Protection Act 1998, job applicants will, in most cases, be entitled upon written request to access all information recorded about them personally, whether held in a manual file or on computer, if it forms part of a “relevant filing system”. This means that the system must amount to more than a bundle of interview notes about all interviewees filed in no particular order. We suggest that to refuse to comply with the request in such circumstances could be contrary to the spirit of the law, particularly as it was the Act which extended the data protection regime to include manual, as well as computerised data.
Furthermore it suggests that you have something to hide, which might be some form of discrimination. A subject access request is a convenient method whereby an unsuccessful job applicant can obtain information about the reasons for his rejection to found a possible discrimination claim. Keeping interview notes can help a business to protect itself from potential claims, such as those for sex or race discrimination.
Good practice is to retain the official interview record with a written note of the reason(s) why the person was not the most suitable candidate for the job in question, and to destroy any individual handwritten notes.
The current Act provides that a request must be in writing and an employer may charge a fee of up to £10 for dealing with the request. If the employer has not received the request in writing, or the fee, or any additional information, then it is not obliged to comply with the request. However, an employer should act promptly in following up an incomplete request, as any deliberate delay by the employer will not be viewed favourably by the Information Commissioner or by a court/tribunal). Once the employer has the written request and received the fee and any necessary further information, it should comply with the request promptly and in any event within 40 days of receiving the completed request. This will change on 25th May when the response will have to be within 30 days and no fee will be chargeable.
Knowing that a job applicant could make a subject access request at any time, here are some guidelines to help reduce the risk that subject access requests may expose you to potential claims.
Employers should therefore:
- Decide how interview notes will be stored. If they will be held on computer or form part of a relevant filing system,
- Make interviewers aware that interviewees will have a right to request access to their interview notes so they should only write down factual observations relevant to the interview process.
- Keep notes during the recruitment process (e.g. during interviews) but be aware that these notes may constitute personal data and would be disclosable to an applicant as part of a subject access request so they should avoid writing comments that could be deemed discriminatory or inappropriate e.g. looked pregnant, came across as a fat lazy slob etc.
- Keep recruitment records for no longer than 6 months after the recruitment exercise where possible. The statutory period during which an unsuccessful applicant may bring a discrimination claim arising from the recruitment process is 3 months but this may be extended in exceptional circumstances.
You are going to have to provide the notes and will have to think whether you apologise for or just explain the harsh comments about his performance.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.