Under
the Data Protection Act people can pay a fee to gain access to information held
about them, but employers are not always obliged to comply
Documents relating to the employment process are frequently produced in the
expectation that they will be kept confidential – for example, statements taken
in the course of an investigation into alleged harassment, or the test results
of a selection procedure. However, sometimes the veil of confidentiality can be
pierced.
Under the Data Protection Act 1998 (DPA), individuals have the right, on payment
of a fee, to make a written request for access to data held about them.
However, where the request would result in the disclosure of information about
another person (eg, identifying a complainant), the employer is not obliged to
comply with the request unless the other individual consents, or it is
reasonable to disclose the information without consent (taking account of any
duty of confidentiality owed to the other individual and any express refusal of
consent).
Service of a subject access request may be the first port of call for
someone seeking disclosure of information about themselves, as press coverage
is generating increasing awareness of this procedure. It was used by a City
high-flier to seek information supporting his claim that his career had been
ruined by inaccurate information posted by a financial institution on an
anti-fraud database. Recently, The Times reported that Ian Huntley had used the
DPA to establish that the police had not kept any allegations against him on
file before applying for the caretaker’s job in Soham.
Due to the complexity of the DPA route, the most likely procedure where
tribunal proceedings would arise is an application for a disclosure order.
In Knight v DSS [2002] IRLR 249, a tribunal ordered disclosure to itself
(but not to the disabled applicant, Mr Knight, or his representatives) of
marked test papers in connection with a job for which he had unsuccessfully
applied.
On appeal, the DSS argued that the documents were confidential, and that if
it was required to disclose them, the test would have to be rewritten at
substantial cost. However, the employment appeal tribunal held that
confidentiality in itself was not a basis for refusing disclosure of relevant
documentation, and that while cost is a material consideration, it should not
deprive the applicant of disclosure – particularly as this test had been in use
for many years.
This case can be contrasted with Asda Stores Limited v Thomson [2002] IRLR
245, in which three managers who had been summarily dismissed for allegedly
supplying illegal drugs at company events, sought disclosure of witness
statements made by other staff in the course of their employer’s
investigations. Asda resisted the application on the grounds that a promise of
confidentiality had been given to the authors of the statements (due to a fear
of reprisals) and that disclosure was not necessary for a fair disposal of the
unfair dismissal claims.
In allowing an appeal against an order by the tribunal for blanket
disclosure, the EAT said the tribunal had failed to properly exercise its
discretion. It noted, however, that it may be proper to exclude a statement
altogether if concealment of the witness’s identity was impossible
Linda Farrell, Partner, Bristows
Key points
– Great care should be taken with subject access requests where
personal data of an individual other than the maker of the request is involved
– Confidentiality per se is not a reason for a tribunal to
refuse a disclosure order, and more wide-ranging disclosure may be granted in
discrimination cases, provided that the documents are relevant
– Tribunals may refuse the disclosure of confidential documents
where the identity of other staff or job applicants cannot be concealed
