They can cost a business significant time and money as well as potentially disclosing a … We don’t know why this provision was introduced. The basis of the discipline was on reported behaviour from a number of other employees. Really, they're looking at a big justification of threats of violence and such towards witnesses about steps the employer would have to go through to make sure they trust the witnesses and so on before they go forward. So, when constructing the DPA 2018, the government was faced with a political choice. The bottom line is this could be discovered if it goes to tribunal. In summary the answer outlined that the employer should investigate the reasons for the anonymity request and balance the complainant’s right of confidentiality with the accused right to a fair hearing. In part 1 of this blog series, we asked how employers facing a Data Subject Access Request (DSAR) should be dealing with ‘mixed data’ cases, i.e. seamus.mcgranaghan@oreillystewart.com, If there's anything you'd like to ask us, just fill in the form on the contact us page:Contact Legal Island, © Copyright 2020 | Legal Island, Island House, 5 Steeple Road, Antrim, BT41 1DN | Tel: 028 9446 3888. SARs are often used as a mechanism for pre-action disclosure by current or former employees for the purposes of actual or intended litigation. You have those sorts of issues. There are all sorts of issues that can arise there. I want a fair trial. Seamus: Yeah. This meant that the exemption from subject access relating to a confidential employment reference could only be applied by the person giving the reference and not the recipient. Have the minutes of that meeting, subsequently circulated to attendees, been completely different to your recollections of the actual meeting? Seamus: This is interesting in terms of subject access requests. It would only cause more negative behaviour in the working environment and the testimony was such that the behaviour was undisputed. At discipline or the disciplinary hearing, I chose to withhold the employee's names as it served no purpose to disclose. Employers should not refuse to respond to a SAR on the belief that it is made for an improper purpose. The inference is that information of a certain “type” should not be disclosed as part of an SAR. . This is a typical situation that arises in disciplinary whereby maybe somebody confidentially comes to their own manager, makes a complaint and would be very uncomfortable with their details being provided or sometimes even on a general risk assessment, you can say to yourself it wouldn't be wise to provide the details of the complainant to this person. Required fields are marked *. when a third party’s personal data is intertwined with that of the requester?. There's a very stiff burden, if you like, on that. I'm going to keep them quiet and anonymous." They wouldn't be able to block an employer from saying, "Hold on a second. Despite the Court of Appeal case of Durant v FSA making it clear that employees should not use Subject Access Requests (SARs) to embark on \"fishing expeditions\", it would appear that employees are continuing to do just that. Also, in relation to whenever you get to hearing and the right for the person to have a fair trial. You can see a circumstance where possibly a manager will say, "I think I can keep a lid on this. What information do I have to disclose in a Subject Access Request and can I provide redacted copies of evidence to keep the anonymity of those involved? It's a twofold test really, it's data protection rights of the person that the allegation has been made against because they'll be saying if this is about me, I'm entitled to know. The GDPR is not there to stop the efficient process of discipline and grievance procedures. Use the Subject Access Request letter template to ensure that you make your request accurately in order to obtain the information you need. The Information Commissioner’s Subject Access Code of Practice suggests that the organisation should tell the employee that it needs the further information too. This was a manager who decided look, "For the sake of good employment relations, I'm going to pour oil on troubled waters. One of the most difficult aspects in data protection occurs when an SAR is made in relation to personal data which contain personal information about another individual. It can be hard to guarantee that the individual that at the time. Writing your Subject Access Request. Jennifer McGrandle advises on how to deal with them. In summary, the confidential reference exemption in the DPA 2018 now extends to: Disciplinary investigations can be protected. This provision kicks in when an employer uses a referee, unknown to the prospective employee. In most circumstances, you cannot charge a fee to deal with a request. Hi, I have a query regarding subject access requests. 1 Your right to make a subject access request. This would protect an investigation until it had concluded. If I don't know who they are, I don't know if it's because I've done something bad to them or they've done something bad to me. You would say look, it's a balancing exercise. Part of that aspect absolutely could be that they were never allowed to cross-examine witnesses. Maybe sometimes what happens is people will anonymise their statements or they will redact the statements. If the employer does not carry out a reasonable investigation, any decisions they make in the disciplinary or grievance case are likely to be unfair. The right to be informed, so a prospective employee might be unaware of the fact that a confidential reference about him or her has been given or received. As the “listed GDPR provisions” (in paragraph 18 of Schedule 2 to the DPA 2018) include the right to be informed (Articles 13 and 14 of the GDPR), the existence of any further confidential reference might not be transparent to the prospective employee. There's a whole series of issues there when you come to anonymity, particularly if in this case or as in this case, it's not the witnesses saying we are scared of this complainant. That gives us some guidance around what o… You as the manager will have an understanding of that, where specifically the person who's coming to you and saying, "I want to raise a complaint, but I want this to be kept anonymous." The DPA 2018 makes it easier to protect such personal data from the right of access because when deciding whether it is reasonable to release of the information concerning that other individual, account has to be taken of “the type of information that would be disclosed” (paragraph 16(3)(a), Part 3, Schedule 2). I've been on many a case where we've had to go down before the employment judge and argue our case as to why documents, full documents on redacted documents should be provided and times why they shouldn't be. There's nothing, really that would in law allow a witness to say you can never use my name at any stage. If the result of a subject access request is that somebody else's privacy is infringed, then it's an adverse affect. Where a disciplinary investigation results in the decision to proceed to a disciplinary hearing, the employer should provide the employee with copies of any witness statements and other written evidence that will be referred to in the hearing. Those are the preliminary points on that. This is commonly referred to as a subject access request or ‘SAR’. This is why in the Information Commissioner’s advice, the recipient of an employment reference was told: “We explained that organisations are generally required to release references they have received about individuals, even if they are marked as confidential”. With all employees now more aware of their rights to access information held on them from GDPR training, I have had a request for a subject access request from an employee that has recently been disciplined. 028 9032 1000 Seamus: Anonymity on it. How do I know that these witnesses don't have it in for me in some way that their bona fides are genuine, that there isn't an ulterior motive? This is not the case with the equivalent exemption in the DPA 2018, which omits the phrase “given by the data controller” and states: “The listed GDPR provisions do not apply to personal data consisting of a reference given (or to be given) in confidence for the purposes of … employment (or prospective … employment) of the data subject” (paragraph 24, Schedule 2). A third party can also make a SAR on behalf of another person. We know from that there's a reduction in the time to provide the response to that to four weeks rather than six. The employment tribunal (ET) case of McWilliams -v- Citibank NA considered whether non-compliance with a subject access request made in the context of disciplinary … There could be allegations these witnesses don't like the individual itself. ... (e.g. Subject access requests – when an employee asks to see any personal data held on them – can throw legal negotiations into disarray if employers do not tread carefully. 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