The Subject Access Request (SAR) provisions are in section 7 Data Protection Act (DPA) and grant employees the right to access their "personal data". Importantly, this is not all data. Personal data is information which affects the person's privacy so it should be biographical in a significant sense and have the individual as its focus. The overriding rule is that the employer should supply as much information as it can without disclosing the identity of any third party. The information disclosed should only relate to personal data.
By lodging a request in writing and providing any information necessary to locate the information sought and, if required, paying the princely sum of £10 an individual (the data subject), employees are entitled to be supplied with a copy of any personal data held about them and any information available to the organisation concerning the individual. Once the organisation is satisfied as to the identity of the person making the request, it has 40 calendar days in which to respond.
Employers often hold large amounts of data on employees, much of which is unlikely to be personal data but the process can still be expensive and time consuming and the only avenue open to an employer to resist a request is to argue that compliance would have a disproportionate impact on its business.
Non-compliance may lead to a referral to the Information Commissioner, court orders for compliance and, for employers already under financial pressure, the additional burden of damages and compensation for distress.
So, does this mean automatic disclosure in a redundancy situation of all information?
Arguably not, although other obligations on the employer in a redundancy situation may serve to reduce concerns about SARs.
What information do employees regularly request?
Often employees request the entire contents of the personnel file, every email ever generated which refers the employee whether directly or indirectly and information concerning the employer's decision to implement a redundancy exercise. Does the effect of the DPA give employees an advantage and access to all this information? The effect of the DPA, SARs and existing redundancy practices need to be weighed up.
Firstly, timing is everything. At the very outset of the announcement of the possibility of redundancies, employees are keen to get behind the employer's rationale for the decision.
However, employers facing an SAR relating to personal data processed in connection with what is described as management forecasting or planning may not need to be unduly concerned. Consideration needs to be given as to whether disclosure would prejudice the conduct of the business. Disclosure may impact negatively on morale among the workforce with the potential knock-on effect of lowering or reducing productivity or adversely impacting on competitive advantage. Given the usual background to redundancy exercises, this is the last thing the employer would want. Relief is at hand. Employers are entitled to rely on an exemption known as the Managing Forecasting Exemption (Schedule 7, para 5 DPA). The important point here is that the employer needs to identify the prejudice to the business of making the disclosure requested, document it in the usual way and ensure a clear explanation is provided to the employee to avoid the potential referral to the Information Commissioner. This also sits neatly with the Employment Tribunal's general unwillingness to question the employer's need to implement redundancies – the focus being more on the fairness of the process being followed.
What about redundancy assessment forms? In other words, how much information is the employee entitled to see in relation to the selection process. It depends on the breadth of the SAR made by the employee. If the employee is seeking copies of their own assessment forms, those should be provided. Indeed, well established case law suggests that in order to ensure a fair redundancy dismissal, this information should be provided during the consultation process itself. So, for those employers following good practice, a SAR is unlikely and if it is served, it is likely to be in broader terms requesting sight of all assessments. This request can be declined and again in the context of Employment Tribunal proceedings, the Employment Tribunal would not expect the employee to be entitled to see scores of colleagues.
Some employers may be aware that it was suggested by the Employment Appeals Tribunal in Davis –v- Farnborough College of Technology that there was some doubt as to whether there was a requirement to disclose individual scores in every case. Not only should caution be exercised in following that decision but a refusal to permit access to scores may encourage the employee to lodge a SAR.
Why withhold information if you have nothing to be concerned about and be forced to disclose following a SAR? It may simply create a bad impression and may lead an employee to create conspiracy theories and inflame the situation.
Be aware that anything generated in the context of legal advice in the redundancy process will be subject to legal privilege and outside the SAR. However, inadvertent disclosure will have the effect of waiving legal privilege.