Unfair Dismissal because of Subject Access Request failure

pexels-photo-357514.jpegThe Data Protection Act 1998 allows any person to request a copy of the personal information an organisation holds on them, this includes a request from an employee to their employer. Making such a request is termed a ‘subject access request’. Once an employer receives such a request they must – subject to a few exemption the legislation – supply the information within 40 days of receiving the request. This right is due to be strengthened in May 2018 when The General Data Protection Regulation 2016/679 is implemented into UK law (which I hope to do a separate post on). 

Subject Access Requests can be a useful tool in an employee’s arsenal when they are undergoing formal disciplinary or grievance proceedings and it is one I often recommend an employee makes – sometimes the outcomes can reveal strong grounds of appeal. For example, in one case I have seen evidence of a senior manager has instructed a disciplinary investigator on what outcome  her investigation must reach before the investigation had even begun. In another a manager committed in writing to another manager that contrary to the stated reasons to the employee the actual reason he was not making reasonable adjustments for an employees disability was because he planned to dismiss her, he was just waiting for an opportunity to do so.

Needless to say having such information in one’s hands in the course of a disciplinary process can be advantageous. In the first case because of management delays an employee’s warning was overturned on appeal as the information was received before the appeal hearing while in the second a disability discrimination complaint before the ET was fairly quickly settled. One of the difficulties with subject access requests however is the time allowed to respond, by the time the 40 days have elapsed many disciplinary and appeal processes have run their course (under the GDPR things will be a little better as the response time is 30 days), meaning if there is a ‘smoking gun’ it will be useless except as material for a employment tribunal claim(if the employee has the right to make such a claim).

This brings us the unfair dismissal case of McWilliams v Citibank (2017) a first tier decision. The facts of the case can be briefly stated. Ms McWilliams had been an employee for many year, she regularly communicated with other traders, including outside of the company, and involved sharing confidential matters. Citibank initiated a disciplinary investigation against Ms McWilliams.

In order to prepare a defence Ms McWilliams, while suspended and therefore unable to access her own records, submitted a subject access request which the employer refused to provide because it was disproportionate. She then submitted a narrowed down request  explaining this was necessary for her disciplinary case. Citibank again did not supply the information (and Ms McWilliams complained to the ICO – the data protection regulator). The employer refused to adjourn the disciplinary hearing and Ms McWilliams was dismissed.

At the tribunal a finding of unfair dismissal was reached on the specific basis that the employer’s treatment of the subject access request – which was a request for disclosure of information to enable Ms McWilliams to answer the charges against her – and the convening of a disciplinary hearing without that disclosure made the dismissal process procedurally unfair.

At root it was not the fact that a subject access request had been refused that made the dismissal unfair per se, it was that the employer had deprived the employee of a realistic prospect of presenting a defence to the allegations against her (a defence that it was subsequently established was supported by the FCA – that the conduct was conduct alleged was condoned by senior managers). Therefore, this case certainly does not mean that if a subject access request is refused or not complied with at the date of a disciplinary hearing the proceedings are unfair (but that is not to say I would not at least raise the issue) but the case is a helpful one and where there is a direct relevance of the subject access request – in this case her suspension made this more crucial – this is an issue that employees can raise in the course of proceedings.

 

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