Employers and employees will both suffer after a landmark decision by the
Court of Appeal drastically curtailed workers’ rights to demand information
being held on them by their employers.
The ruling in Durant v Social Services Authority narrows the definition of
‘personal data’, which staff can request to see by subject access requests
(SARs) under the Data Protection Act 1998.
Ben Willmott, employee relations adviser at the Chartered Institute of
Personnel and Development (CIPD), said employers would breathe a sigh of
relief, as the ruling would restrict employees’ ability to use data access
rights to ‘go fishing’ for information for litigation.
He said the definitions still allowed enough scope for legitimate requests
for sensitive information.
However, Alison Wetherfield, chair of the Employment Lawyers Association’s
legislation and policy committee, said that applying the ruling would place a
significant practical burden on employers.
She said that when an SAR was made previously, employers would simply have
to find information and remove other names that appeared on the document.
Following the Court of Appeal’s decision, for data to be regarded as
‘personal data’ – giving rise to a disclosure obligation – it must name or
directly refer to an individual. Merely mentioning a subject’s name in a
document does not make the information in that document ‘personal data’.
The information will have to be biographical ‘in a significant extent’, with
‘the data subject as its focus’, for it to qualify as personal data. Then
employers will have to go back through the information to remove other
individuals’ names.
Wetherfield said employers will be burdened with sorting through all the
information and working out which category it falls into.
"Applying this new definition will make it very difficult for
employers," Wetherfield said.
Nick Tyler, legal adviser at the Information Commission, said the ruling was
useful to prevent SARs being used to bypass normal routes to get information
for litigation.
By Michael Millar
