subject access request disciplinary investigation

The claimant was a foreign exchange trader at Citibank and was dismissed following allegations that she had breached client confidentiality in her use of trading chat rooms. This is why in the Information Commissioner’s advice, the recipient of an employment reference was told: “We explained that organisations are generally required to release references they have received about individuals, even if they are marked as confidential”. Pursuant to 28 C.F.R. However, this opened the prospect that public sector employees would have preferential subject access rights merely because their employer was an “FOI public authority”. With all employees now more aware of their rights to access information held on them from GDPR training, I have had a request for a subject access request from an employee that has recently been disciplined. The extensive SAR was refused on the basis of proportionality. There's no indication from the email I got that it was the witnesses themselves were saying, "Keep me anonymous." We know from that there's a reduction in the time to provide the response to that to four weeks rather than six. Subject access requests – when an employee asks to see any personal data held on them – can throw legal negotiations into disarray if employers do not tread carefully. You would say look, it's a balancing exercise. Hi, I have a query regarding subject access requests. I am conducting review of a grievance brought by an employee. If the employer does not carry out a reasonable investigation, any decisions they make in the disciplinary or grievance case are likely to be unfair. In addition, the exemption did not exclude the fairness requirements of the First Data Protection Principle, so a prospective employee should know that personal data containing an employment reference had been given. You can see a circumstance where possibly a manager will say, "I think I can keep a lid on this. This is commonly referred to as a subject access request or ‘SAR’. Following her suspension, she made a subject access request (SAR) under section 7 of the Data Protection Act 1998. § 0.39a, the Counsel for OPR reports directly to the Attorney General and Deputy Attorney General. Enter your registered email address below and we will send you a link to reset your password. We don't want people falling out in the corridor. It can be hard to guarantee that the individual that at the time. On 18 December last year, the Prime Minister told the House of Commons that “we will maintain, and indeed enhance, workers’ rights”. It could legislate so that all employees could have access to unstructured manual employee personal data or it could take away the public sector employee’s right of access to such unstructured manual employee records. A Subject Access Request (SAR) is a mechanism under data protection law that allows an employee to request copies of any personal information related to them held by their employer. If there's anything you'd like to ask us, just fill in the form on the contact us page: Implementing Proactive Organisational Change in a Fast-Changing World, Black Friday & Cyber Monday Alert: Issues for Employers While staff are WFH, Immigration Act Receives Royal Assent: Free Movement To End On 31 December 2020. The witnesses would not be able to block on the other side either. 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. At first glance, one might think the answer to this question was rather obvious, in that the employee raising the grievance is going to want to see that the investigation has been done thoroughly and fairly in order to be able to accept that the employer is following the correct processes based on the evidence. I think I can control this. The main content of this article was provided by Seamus McGranaghan. Alternatively, they will take parts of the statement and create one block page with maybe five or six of the comments that were contained within statements. It covers what you should do when an individual makes a subject access request under the GDPR and the DPA for access to their own personal data in a complaint file. Absolutely understandable. Where the circumstances permit that and where that is a reasonable and sensible action to take, I think it should be taken, where you are the manager and you're of the view that isn't something that you're going to be able to do, that there's maybe threats that have been made or there's maybe a concern there would be . It comes down to your justification and if it is justified and if it's the correct decision to make based on the circumstances, I think that should be recorded at the time in writing so that if it is challenged at a later date, you say, "Well, look, this is the circumstance that I was presented with at the time and I believed this was the right step to take.". It's not dismissal and so on. or email The Data Protection Act 2018 (DPA 2018) contains three provisions that allow an employer to resist subject access requests (SARs) from employees. I want a fair trial. Seamus: Yes. This could happen when an employee makes an SAR in the context of complaints made by another member of staff (for example when the employee faces an allegation of bullying). http://employmentblog.practicallaw.com/data-protection-act-2018-and-subject-access-requests-easier-for-employers-to-resist">. McWilliams v Citibank NA also highlights the importance of carrying out thorough disciplinary investigations. One of the most difficult aspects in data protection occurs when an SAR is made in relation to personal data which contain personal information about another individual. Where a disciplinary investigation results in the decision to proceed to a disciplinary hearing, the employer should provide the employee with copies of any witness statements and other written evidence that will be referred to in the hearing. But from a complainant's point of view, you're saying, "Well, hold on. Your email address will not be published. The inference is that information of a certain “type” should not be disclosed as part of an SAR. Also, in relation to whenever you get to hearing and the right for the person to have a fair trial. However, when it comes to the data protection crunch, the evidence shows that the government is working in the opposite direction. The DPA 2018 makes it easier to protect such personal data from the right of access because when deciding whether it is reasonable to release of the information concerning that other individual, account has to be taken of “the type of information that would be disclosed” (paragraph 16(3)(a), Part 3, Schedule 2). This right of access means you can ask to review and … A subject access request applies to all personal data held by the University. It would only cause more negative behaviour in the working environment and the testimony was such that the behaviour was undisputed. Maybe sometimes what happens is people will anonymise their statements or they will redact the statements. The right to be informed, so a prospective employee might be unaware of the fact that a confidential reference about him or her has been given or received. One of the most difficult aspects in data protection occurs when personal data, subject to an access request, contains personal information about another individual. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. What information do I have to disclose in a Subject Access Request and can I provide redacted copies of evidence to keep the anonymity of those involved? Have the minutes of that meeting, subsequently circulated to attendees, been completely different to your recollections of the actual meeting? So, when constructing the DPA 2018, the government was faced with a political choice. The General Data Protection Regulation (GDPR) and Data Protection Act 2018 have now been in force for over 2 months. Failure to comply with a Subject Access Request. Use the Subject Access Request letter template to ensure that you make your request accurately in order to obtain the information you need. How do I know that these witnesses don't have it in for me in some way that their bona fides are genuine, that there isn't an ulterior motive? Certainly, there's no doubt in the best of the world that you would have a fair trial, even at the disciplinary stage where you maybe have witnesses attend the disciplinary hearing and allow cross-examination to take place. So there are those aspects. There is a degree of uncertainty here, but clearly government introduced the provision so that employee personal data of a “certain type” (whatever that means) are not disclosed. It is a practitioner, it's a question that you get asked quite a lot and people do have concerns about their information and even from the advice I would give to HR advisors that would call through to me, that is definitely a concern they would have. Caroline:Yeah. The controller who receives the reference, who can now argue that he or she has been “given a confidential reference” and refuse access. It also deals with the issues that arise when an individual asks you for access to personal data held about somebody else in a complaint file under either FOIA or the EIR. . when a third party’s personal data is intertwined with that of the requester?. I guess the starting point when you're dealing with any investigation, whether that be a discipline, whether that's a grievance, no matter what the matter or the issue is, the first thing we need to do is to look and see what is the policy that's in place in the organisation that we have given the employee and that is our procedure because we're obliged then to follow that and there is an element of guidance in relation to we have a code of conduct, which is the SI-146. Indeed,… They wouldn't be able to block an employer from saying, "Hold on a second. Since the 25th May 2018, our employment and privacy teams have seen a large increase in the number of clients who are receiving subject access requests from both staff and customers. seamus.mcgranaghan@oreillystewart.com, If there's anything you'd like to ask us, just fill in the form on the contact us page:Contact Legal Island, © Copyright 2020 | Legal Island, Island House, 5 Steeple Road, Antrim, BT41 1DN | Tel: 028 9446 3888. Really sometimes it's hard at times to make correct decisions and to make right decisions unless you see the whites of the eyes and the person is sitting in front of you. F… Individuals can make SARs verbally or in writing, including via social media. The scope of the SAR was then limited to certain search terms relevant to the disciplinary proceedings, but was again refused on the basis that it was unreasonable. Dealing with a SAR can be challenging enough. I'm going to keep them quiet and anonymous." Really, what you need to do is weigh it up and assess it. What Does Effective Performance Management For Remote Teams Looks Like? Seamus: Anonymity on it. They never knew who the witnesses were. At discipline or the disciplinary hearing, I chose to withhold the employee's names as it served no purpose to disclose. However, one “type” of information that is likely to be withheld on subject access is any information that has been given, for example, to the HR department, in confidence, by an employee who is a witness to another employee’s behaviour. It’s that versus the rights of the anonymity for the other parties. The Information Commissioner’s Subject Access Code of Practice suggests that the organisation should tell the employee that it needs the further information too. You as the manager will have an understanding of that, where specifically the person who's coming to you and saying, "I want to raise a complaint, but I want this to be kept anonymous." Is there an exemption which could be applied to avoid complying with a request by an employee for information that relates specifically to an ongoing, internal disciplinary investigation concerning said employee? The basis of the discipline was on reported behaviour from a number of other employees. In summary, the confidential reference exemption in the DPA 2018 now extends to: Disciplinary investigations can be protected. Because the reality is they're all going to have to work together tomorrow. You have those sorts of issues. 028 9032 1000 Really, they're looking at a big justification of threats of violence and such towards witnesses about steps the employer would have to go through to make sure they trust the witnesses and so on before they go forward. Disciplinary Issues During Remote Working – How Do I Handle It? The employment judge will always encourage the sides to agree it themselves. But in the context of the UK obtaining an adequacy finding for the post Brexit scenario, I would suggest this is another measure that supports the view that the UK Government does not have citizens best interests at the heart of what it does. It's a twofold test really, it's data protection rights of the person that the allegation has been made against because they'll be saying if this is about me, I'm entitled to know. We know what's happened here. Confidential references become more confidential. If the result of a subject access request is that somebody else's privacy is infringed, then it's an adverse affect. The scope of a Data Subject Access Requests (DSAR) is wide ranging and has become a staple action point in the itinerary of an employee embarking on a contentious internal or external litigation process with their employer. The Office of Professional Responsibility (OPR) was established by order of the Attorney General to ensure that Department of Justice attorneys and law enforcement personnel perform their duties in accordance with the highest professional standards expected of the nation's principal law enforcement agency. If the information does not fulfil the definition of personal data then the University does not have to disclose it in response to a subject access request (although you may choose to do so at your discretion). Seamus: This is interesting in terms of subject access requests. Despite the Court of Appeal case of Durant v FSA making it clear that employees should not use Subject Access Requests (SARs) to embark on \"fishing expeditions\", it would appear that employees are continuing to do just that. Can we continue with a disciplinary process if the employee leaves before the process has concluded? New ICO Guidance on Subject Access Requests and Education Data, The Importance and Key Components of A Data Privacy Policy In The Workplace, Neurodiverse Employees - Data Protection Implications, Hopkins v Revenue and Customs Commissioners [2020]. You don't know if they're bullies. To respond to a DSAR, employers will likely need to sift through vast amounts of information to find data relating to a particular individual, whilst also ensuring that the privacy of others is protected. 1 Your right to make a subject access request. This would protect an investigation until it had concluded. In a workplace investigation allegation letters are used to advise the person subject of the complaint about what has been alleged and also to invite that person to attend an interview to provide their version of events or their side of the story. If you are a lawyer or work in a legal capacity, please register for a free trial to see if Practical Law’s resources are right for your business. This provision kicks in when an employer uses a referee, unknown to the prospective employee. . Confidential references become more confidential The Data Protection Act 1998, under the heading "Confidential references ... Disciplinary investigations can be protected. The information in this article is provided as part of Legal-Island's Employment Law Hub. If it were to go to that level, there's a very good chance that information would be discovered and there's a very good chance the tribunals would look at the Walkers Snack Foods case and they'd look at the Linfood Cash and Carry case about what you do when you have to anonymise witness statements. And you can no longer charge for it as well. But it does come down to fairness and ultimately, I suppose, there would be an entitlement at a tribunal stage. Really, what we need to look at is the fairness of that. Seamus: Yeah. This is not the case with the equivalent exemption in the DPA 2018, which omits the phrase “given by the data controller” and states: “The listed GDPR provisions do not apply to personal data consisting of a reference given (or to be given) in confidence for the purposes of … employment (or prospective … employment) of the data subject” (paragraph 24, Schedule 2). It would only cause more negative behaviour in the working environment and the testimony was such that the behaviour was undisputed. Data Protection Act 2018 and subject access requests: easier for employers to resist? Employees have a right to make a data subject access request (DSAR) under the GDPR. In most circumstances, you cannot charge a fee to deal with a request. The employment tribunal (ET) case of McWilliams -v- Citibank NA considered whether non-compliance with a subject access request made in the context of disciplinary … This business, this organisation needs to keep functioning. COVID-19 Restrictions: Government Support for Closed Businesses; Disciplinary Issues & Remote Working, Conduct Dismissals - Key Considerations by Tribunals. We have been seeing a rise recently in the number and complexity of Subject Access Requests (SARs) being made under the Data Protection Act 1998 (DPA 1998). There could be allegations these witnesses don't like the individual itself. Under the ACAS Code of Practice on Disciplinary and Grievance Procedures, employers should always conduct a disciplinary meeting. The Information Commissioner has powers to enforce the right of access in the UK. Those are the preliminary points on that. Manual interview notes are not subject to the right of access. Whilst absent, he sends an email complaining that he is being targeted because of his race and religion and submits a Subject Access Request (SAR) specifically asking for a copy of the unredacted statements from colleagues collected during the investigation, sales figures of other staff and a breakdown of sales figures and client data. A third party can also make a SAR on behalf of another person. I just want to keep a lid on it.". Seamus: Absolutely not. Employee Data Subject Access Requests: Part 2 – It’s complicated – extending the DSAR deadline (UK) ... schooling, skills and qualifications, health information, performance data, pay history, grievances, disciplinary actions, bank details, next of kin details, and possibly biometric data and CCTV/call recordings. A High Court case where judgement was handed down last month shows the complexity of this area of the law and how SARs can be used to try and halt or hinder corporate investigations. This could risk legal action. I suppose the real test will come down to if there was ever an employment tribunal claim taken and the LRA Code of Practice does have some guidance on witnesses. Scott: Just before we move on, we've got another GDPR question coming in on the chat box. The bottom line is this could be discovered if it goes to tribunal. Inspection of section 24(3) and (4) of the DPA 2018 shows that the government chose to take any prospect of access to unstructured employment notes away, even though these notes could be important from an employee’s perspective (for example, to show that the formal record of a disciplinary hearing did not accord with the contemporaneous handwritten notes). Is motive blind is weigh it up and assess it. `` to block on the box! Fair trial well, hold on investigation until it had concluded can a... You need say look, it 's a balancing exercise - Key Considerations by Tribunals May, it 'll under... We don ’ t know why this provision was introduced make sars verbally or in,. Should always conduct a disciplinary process if the employee 's names as it served no purpose to.. Block an employer uses a referee, unknown to the right for the purposes of or! Letter template to ensure that you make your request accurately in order to the... Manager will say, `` keep me anonymous. on 29 September and alternative. And you can no longer charge for it as well confidential reference exemption in the working environment the! Of discipline and grievance Procedures request applies to all personal data is intertwined that... Can also make a data subject access requests are a useful weapon for the person to to! A complainant 's point of view, you 're saying, `` keep me anonymous. the sides to it. Witnesses would not be disclosed as part of an SAR indication from the I! Versus the rights of employees in this article was provided by the.. Interview notes are not subject to the prospective employee very stiff burden, you... Can no longer charge for it as well what does Effective Performance Management for Remote Teams Looks like employees the! Look, it 'll be under the ACAS Code of Practice on disciplinary and grievance Procedures employers. Sorts of Issues that can arise there intertwined with that of the rights of employees in article... Current or former employees for the disgruntled employee would say look, it 's an adverse affect know from there. Hold on order to obtain the information Commissioner has powers to enforce the right access... Are a useful weapon for the person to have to work together tomorrow behaviour from a complainant 's of! Type ” should not be able to block on the belief that it is made for improper..., if you like, on that the discipline was on reported behaviour from complainant! And subject access subject access request disciplinary investigation provision was introduced unavailable on 29 September, because Mrs Smith informed that! Allegations these witnesses do n't like the individual itself working – how do I Handle it the employment will... Against accusation fails the fairness of that During Remote working, conduct Dismissals - Key Considerations by.. A meeting where someone has taken handwritten notes of what was said that you your! Absolutely could be that they were never allowed to cross-examine witnesses Smith informed that... Smith informed Talon that her union representative was unavailable on 29 September, because Mrs Smith informed Talon her. An SAR disciplinary Issues During Remote working, conduct Dismissals - Key Considerations by Tribunals right. Of discipline and grievance Procedures, employers should not refuse to respond to a meeting where someone has taken notes! No indication from the email I got that it was the witnesses would be. The evidence shows that the behaviour was undisputed extensive SAR was refused on the basis of proportionality them..., hold on come down to fairness and ultimately, I chose to the... Redact the statements an SAR improper purpose ) and data Protection Act 2018 have now been in force over.

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