I am conducting review of a grievance brought by an employee. I have received a subject access request asking for all information on the employee pursuant to section 7 of the Data Protection Act 1998 (DPA), including his personnel file and all other documents relating to the grievance, even though it is still ongoing. What documents do I have to send the employee?
Decide which files you have to search.
The DPA covers paper and electronic files. In relation to paper files, the case of FSA v Durant [2003] EWCA Civ 1746 has led the Information Commissioner to give guidance as to what is a relevant filing system. For example, a chronological paper file without any dividers indicating the type of information contained will not necessarily be a relevant filing system. Just because a document was once produced on a word processing system or could be scanned onto a system, will not make it a document on a relevant filing system (Smith v Lloyds TSB Bank plc [2005] EWHC 246 (CH)).
Do the documents contain personal data?
Data is ‘personal’ if it relates to an individual and an individual can be identified from it, such as information with biographical significance, relating to facts or events in that individual’s life. The data must also have the individual as its focus rather than some other person, transaction or event, in which that individual may have been involved. A mere reference to a person’s name is insufficient, so that e-mails which are simply copied to the employee concerned or which refer to them in passing will not be disclosable.
Durant was attempting to take his case, disputing these points, to the House of Lords, but has recently been refused permission to do so. On that basis, this guidance is currently a good description of the personal data which an employer must disclose. There is still a question mark over whether the UK’s implementation of the DPA on this is lawful. We may see this challenged in the European Court of Justice.
Are there any applicable exemptions?
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Exemptions that may apply here cover confidential documents relating to management planning or negotiations with the employee, which could lead to prejudice, and those subject to legal professional privilege (documents containing legal advice between a solicitor and client or those created for actual or contemplated litigation or tribunal proceedings). Documents referring to third parties may also not be disclosable.
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