Subject access requests for employees

A subject access request (SAR) is a mechanism under the data protection legislation (UK GDPR) to request all information that an organisation holds in relation to an individual. 

Over recent years, we have found a sharp increase in the number of SARs being made by employees to their employers, especially in circumstances where an employment dispute has arisen and/or Tribunal or Court proceedings are anticipated or have commenced. 

When can subject access requests be made?

SARs can be made where an individual genuinely wishes to know what information is held about them but they can also be made as a tactical manoeuvre by an employee to engineer a settlement with their employer perhaps where the employment relationship has deteriorated. 

An employee can make a SAR either verbally or in writing. We recommend the request is made in writing (by email to an appropriate contact – ask your employer if this is not clear from its policies) so that there can be no dispute as to when and who has received the SAR.

The date of receipt of the SAR is important, as an employer is required to provide the requested information to the employee without undue delay and in any event within one month of receipt of the request. The request itself should be focused and where possible limited by reference to subject matter or dates. This is to avoid the risk of the employer refusing to deal with the SAR for being ‘manifestly unfounded or excessive’. 

Only in certain circumstances is an additional extension to handle the request permitted and an employer must inform the employee of any extension together with the reasons for the delay. 

Responding to a SAR can cause an employer considerable time and effort in complying with the request and unlike the disclosure process in a Tribunal claim, the employee is entitled to be provided with their personal data even if it is not directly related to the issues in dispute. 

If the employee believes that their employer has failed to comply with the requirements of their SAR then they are entitled to challenge the response by making a complaint to the Information Commissioner’s Office (the ICO), and/or apply to the court for a compliance order. 

When is it not worth sending a subject access request?

Sometimes, it may not be worth submitting a SAR, for example, where settlement discussions have already been progressing well between an employer and an employee, the submission of a SAR could simply annoy an employer and make settlement more difficult. Where a larger employer receives a SAR, we have found that these organisations won’t necessarily be fazed by receipt of a SAR as they are used to dealing with such requests on a frequent basis.

Where an employee has commenced a claim in the Tribunal, then it may be better to obtain relevant information via the disclosure process. 

It is a standard Tribunal direction that all documents relevant to an issue in a claim that are in a party’s possession, custody or control should be disclosed to the other party/parties. 

This includes documents on which that party wishes to rely on as well as the documents which adversely affect their case. This means that an employer should disclose relevant documents which may not help their defence, but may support the employee’s claim. 

Sometimes employers do not properly comply with their duty of disclosure and where the employee believes this to be the case, the employee can apply for an order for specific disclosure from the Tribunal in respect of those documents which have not been disclosed. However, difficulties can sometimes arise when the employee is not certain as to what relevant documents may or may not exist for the purpose of their request for disclosure. 

We have experience in making and dealing with subject access requests and dealing with disclosure obligations effectively in the Employment Tribunal and are able to assist employees with both processes. If you require assistance then please do not hesitate to contact the employment team who will be able to assist you further. 

If you require any more information on this topic please contact Charlotte via samantha.randall@birkettlong.co.uk or call 01245 453838.