Emilie van Kempen
Employment law, Liability, disputes and litigation
10 January 2019
Emilie van Kempen |
- Employment law
- Privacy
- Emilie van Kempen
Right of access to personnel files
Need advice? Please call or e-mail
Right of inspection. A new right by GDPR?
We are regularly asked whether an employee has the right to inspect his or her entire personnel file. It is thought that since the introduction of the General Data Protection Regulation (GDPR) an employee has this right. However, the right of access is not new. This also existed under the predecessor of the GDPR; the Dutch Personal Data Protection Act. But what should, in any case, an employee be informed about and how far does the right of access extend?
In any case, an employee must be informed on the basis of the GDPR that his personal data are being processed, what data this concerns and why. The latter will be in order to be able to fulfil the employment contract and to be able to reward an employee. To do this, you simply need name, date of birth and social security of service number. But other personal data can also be processed, for example for the lease car or to follow a specific training course. Furthermore, an employer must also indicate, among other things, with whom he shares this information. For example, a pension fund or other organization(s), whether or not abroad. An employee must also be informed of his rights regarding the GDPR. For example, the right to correction of personal data, or the right to object to a processing or the right to file a complaint with the Dataprotection Authority. This can all be included in an employee manual or personnel guide.
How far does the access right extend?
The right of access also belongs in this (not exhaustive) list of rights. The employer must therefore inform the employee that the employee has the right of access to his/her personal data. But does an employer then have to make the entire personnel file of an employee available to that employee, if requested? The answer is no.
As an employer, you only need to provide factual information. Such as the name and address details, salary slips, the contract for the lease car or assessments that have occurred. Generally speaking, this will involve data that an employee has already received or knows for a long time. Internal notes of managers with their brainwaves or ideas need not be provided. These are not factual data, but serve for internal deliberation. Think of preparing an assessment interview. This information does not have to be provided on the basis of the right of access.
The rights and freedoms of others must also be taken into account when implementing the right of access. This may result in the names of others (or other employees) being deleted. But also that no lists need to be provided of employees who are following an improvement process or of employees who can be declared redundant in the event of a reorganization in the pipeline.
Right of refusal to access
Also know that an employer has the right to refuse a request for access. Namely if a request is manifestly unfounded or excessive, particularly because of its repetitive nature. An employer can then charge a reasonable fee for complying with the right of access or even refuse to comply with the request. It is up to the employer to prove the manifestly unfounded or excessive nature of the request. Within one month of the request, the employer must give reasons for refusing to comply with the request. The employer must also inform the employee about the possibility to submit a complaint to the Dataprotection Authority and to lodge an appeal at court.
The right to access a personnel file does thus not reach into heaven. You have to look at all of the different shades of the matter. The lawyers at Wisemen Advocaten will be happy to help you ask the right questions to the employer and employee in order to be able to respond correctly to a request for access. Please contact us for more information:
Advice!
Do you want to use our knowledge and call us with some regularity? Subscribe to the Virtual Legal Department.
Interested? Call or email us:
T. +31(0)70-3819281
E. info@wisemen.nl
For the latest information, subscribe to the newsletter now
Archief
