Peru Supreme Court adopts new approach to retention of employment records and burden of proof

At a glance

• The Second Transitional Constitutional and Social Law Chamber of Peru's Supreme Court has ruled that employers cannot be required to retain employment records beyond the five-year period prescribed by law.
• In Labour Cassation No. 3579-2025, La Libertad, the Court held that the absence of documents after the statutory retention period has expired should not, by itself, create an adverse evidential inference against an employer.
• The decision confirms that, where claims relate to periods more than five years old, the burden of proving those claims rests with the party asserting them.
• The ruling departs from a March 2026 decision of the Fourth Transitional Constitutional and Social Law Chamber, which found that the five-year period is only an administrative retention requirement and does not remove the employer's evidential obligations.
• The development creates conflicting Supreme Court authority, meaning the evidential consequences of missing records may continue to vary until a consistent judicial approach emerges.

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Peru's Supreme Court has issued a significant decision on the retention of employment records and the allocation of the burden of proof in employment disputes involving historic claims.

In Labour Cassation No. 3579-2025, La Libertad, the Second Transitional Constitutional and Social Law Chamber held that employers cannot be required to retain employment documents for longer than the period expressly established by law. The Court relied on several provisions that impose a five-year retention period for business and employment-related documents, attendance records and evidence of payment of employment-related financial obligations.

The Court concluded that imposing a longer retention obligation would create a legal duty not contemplated by legislation and would be inconsistent with the constitutional principle that no person is required to do what the law does not mandate.

The ruling is particularly notable because it departs from a position adopted by another chamber of the Supreme Court earlier in 2026. In Labour Cassation No. 36773-2023, La Libertad, the Fourth Transitional Constitutional and Social Law Chamber held that the five-year period is an administrative document-retention requirement rather than a limitation on evidential obligations. Under that approach, employers could still be required to rebut an employee's allegations even where the relevant records are no longer legally required to be retained.

According to the Second Chamber, once the statutory five-year retention period has expired, the absence of documentation should not automatically be treated as non-compliance by the employer or result in adverse evidential consequences. Instead, where a claim concerns rights arising more than five years earlier, the burden of proof falls on the party making the allegation.

The existence of conflicting Supreme Court decisions creates uncertainty regarding the evidential treatment of historical employment claims. Until a consistent approach is established, the outcome may depend on the position adopted by the court hearing the dispute. In light of this uncertainty, employers may wish to consider retaining employment records in digital form for periods exceeding the statutory five-year minimum where this is reasonably practicable.