The world of data protection can feel like a minefield, complex and fraught with risks of getting it wrong. But although compliance with legal requirements in terms of what data you can and can’t keep and for what reason and how long is important, it’s also crucial to remember that data, or at least good quality data, can be a valuable and proactive tool in both preventing and defending legal claims.
Identifying risks and preventing issues
Data can help your business identify potential legal risks by analysing past employee complaints, patterns of concerns raised, departments with high turnover rates or frequent performance concerns, and employee satisfaction rates through surveys or similar. Analysing risk using this type of data can enable managers to identify areas for improvement, take proactive steps to address problems, create a positive work environment and minimise the likelihood of legal action.
Even more basic data like protected characteristics and pay records can help identify risks – for example if you monitor pay rates and can easily cross-reference them by sex, you’re more likely to identify where there is a risk of an equal pay claim, and can address disparities quickly before there is an issue. Similarly, if recruitment and promotion decisions can be analysed against protected characteristics, this data can tell you whether you have a problem with potentially discriminatory decisions.
Data in the form of notes taken in meetings or notes of decisions made can also help prevent claims by showing the rationale for decisions being made – sharing this with employees in the event of an issue can head a claim off at the pass very effectively.
And from a pragmatic point of view, managers who are in the habit of noting down conversations and decision-making processes and are aware it will be stored and may be used are less likely to say or do anything that could cause a problem later.
Data can also help you defend against legal claims by providing evidence to support your case. For instance, if an employee accuses the company of discrimination or harassment, records can be used to demonstrate that you followed proper procedures and took appropriate action to address the issue.
Many tribunals involve a lot of ‘he said she said’ about what happened, and when, and who said what. If your defence is constructed based on solid evidence of exactly what happened, you are not then heavily relying on the performance of your witnesses in the hearing room, and asking the judge to just believe what they say, you can actually show what happened easily.
Evidence of rationale for decision-making is also a valuable tool in defending a claim. Discrimination claims for example are often based on something happening that the employee didn’t like, and them feeling it was because of a protected characteristic. If you can clearly show written evidence of the decision making process and the actual rationale for the decisions you made, defending a claim is significantly easier.
Just as it is important not to keep data you don’t need, for longer than necessary, it is also important that you actively create and keep the data that will help you, and that you fully and effectively utilise the data you have.
By using data to identify risks, evidence decision-making and process compliance, and improve employee relations, you can reduce your legal exposure and protect your bottom line.
If you’d like some guidance on using employee data to protect your small business, do get in touch.