The witnesses would not be able to block on the other side either. The evidentiary material obtained during an investigation will also be used during subsequent disciplinary proceedings, and act as a preparatory stage to a disciplinary process. 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. Have the minutes of that meeting, subsequently circulated to attendees, been completely different to your recollections of the actual meeting? Enter your registered email address below and we will send you a link to reset your password. 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. The employment judge will always encourage the sides to agree it themselves. 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. At discipline or the disciplinary hearing, I chose to withhold the employee's names as it served no purpose to disclose. I want a fair trial. You have those sorts of issues. Scott: Also, controlling the process because this caller here, this listener here knows the situation. At discipline or the disciplinary hearing, I chose to withhold the employee's names as it served no purpose to disclose. § 0.39a, the Counsel for OPR reports directly to the Attorney General and Deputy Attorney General. 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]. 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. Seamus: Yes. Mrs Smith informed Talon that her union representative was unavailable on 29 September and suggested alternative dates just under two weeks later. In general, such manual unstructured processing of personal data is subject to the DPA 2018, but only if the controller is an “FOI public authority” and only for the right of access and correction. Subject access requests are a useful weapon for the disgruntled employee. Caroline:Yeah. Scott: Just before we move on, we've got another GDPR question coming in on the chat box. The basis of the discipline was on reported behaviour from a number of other employees. 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. You can't use my witness statement because it involves my name and I've got a right under the GDPR that you can't divulge that to somebody else." Disciplinary investigations can be protected. 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. A subject access request applies to all personal data held by the University. Employers be warned: failure to respond properly to a subject access request (“SAR”) can lead to a finding of unfair dismissal. There's no indication from the email I got that it was the witnesses themselves were saying, "Keep me anonymous." This was postponed until 29 September, because Mrs Smith was unwell and then on annual leave. Indeed,… Part of that aspect absolutely could be that they were never allowed to cross-examine witnesses. or email Maybe sometimes what happens is people will anonymise their statements or they will redact the statements. There's a very stiff burden, if you like, on that. 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. 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. 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. Disciplinary Issues During Remote Working – How Do I Handle It? It's about sitting down and working through the ups and the downs, the rights and wrongs and hopefully arriving at a fair decision. This meant that the exemption from subject access relating to a confidential employment reference could only be applied by the person giving the reference and not the recipient. when a third party’s personal data is intertwined with that of the requester?. http://employmentblog.practicallaw.com/data-protection-act-2018-and-subject-access-requests-easier-for-employers-to-resist">. In part 1 of this blog series, we asked how employers facing a Data Subject Access Request (DSAR) should be dealing with ‘mixed data’ cases, i.e. The GDPR is not there to stop the efficient process of discipline and grievance procedures. The inference is that information of a certain “type” should not be disclosed as part of an SAR. SARs are often used as a mechanism for pre-action disclosure by current or former employees for the purposes of actual or intended litigation. 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. 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. 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. McWilliams v Citibank NA also highlights the importance of carrying out thorough disciplinary investigations. 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." It's the employers saying, "You know what? This right of access means you can ask to review and … If it has just been received post-25th of May, it'll be under the new GDPR regime. There's a whole series of issues there when you come to anonymity, particularly if in this case or as in this case, it's not the witnesses saying we are scared of this complainant. But from a complainant's point of view, you're saying, "Well, hold on. Really, what you need to do is weigh it up and assess it. Seamus: Absolutely not. I just want to keep a lid on it.". 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). Have you ever been to a meeting where someone has taken handwritten notes of what was said? As the “listed GDPR provisions” (in paragraph 18 of Schedule 2 to the DPA 2018) include the right to be informed (Articles 13 and 14 of the GDPR), the existence of any further confidential reference might not be transparent to the prospective employee. The government has ensured there is no right of access to these handwritten notes if they comprise “manual unstructured personal data” as defined in the DPA 2018, where the content of the notes relate to employment matters. We know what's happened here. Investigations are covered by the Acas Code of Practice on disciplinary and grievance procedures , which is the minimum a … We don't want people falling out in the corridor. Seamus: This is interesting in terms of subject access requests. Data Protection Act 2018 and subject access requests: easier for employers to resist? 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. For example, when an employee exercises the right of subject access to personal data concerning complaints made by another member of staff (e.g. Individuals can make SARs verbally or in writing, including via social media. The main content of this article was provided by Seamus McGranaghan. Employers should not refuse to respond to a SAR on the belief that it is made for an improper purpose. The investigation process Employers should draw a clear distinction between the investigation process and a disciplinary procedure ideally by ensuring they are conducted by different people. 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 . 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? The Data Protection Act 2018 (DPA 2018) contains three provisions that allow an employer to resist subject access requests (SARs) from employees. On 18 December last year, the Prime Minister told the House of Commons that “we will maintain, and indeed enhance, workers’ rights”. This is commonly referred to as a subject access request or ‘SAR’. This is a typical situation that arises in disciplinary whereby maybe somebody confidentially comes to their own manager, makes a complaint and would be very uncomfortable with their details being provided or sometimes even on a general risk assessment, you can say to yourself it wouldn't be wise to provide the details of the complainant to this person. 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. This provision kicks in when an employer uses a referee, unknown to the prospective employee. And you can no longer charge for it as well. Absolutely understandable. But it does come down to fairness and ultimately, I suppose, there would be an entitlement at a tribunal stage. The General Data Protection Regulation (GDPR) and Data Protection Act 2018 have now been in force for over 2 months. Comment document.getElementById("comment").setAttribute( "id", "cc914def5d73b4e937af313dacb88661" );document.getElementById("51e063523b").setAttribute( "id", "comment" ); …thinking on various aspects of employment and discrimination law from our team and leading commentators. I can get a resolution for all of these parties. 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). 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. However, when it comes to the data protection crunch, the evidence shows that the government is working in the opposite direction. We know from that there's a reduction in the time to provide the response to that to four weeks rather than six. This was a manager who decided look, "For the sake of good employment relations, I'm going to pour oil on troubled waters. ... (e.g. 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. You don't know if they're bullies. If the result of a subject access request is that somebody else's privacy is infringed, then it's an adverse affect. 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. Contact telephone number is I am conducting review of a grievance brought by an employee. Employees have a right to make a data subject access request (DSAR) under the GDPR. 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. The Data Protection Act 1998, under the heading “Confidential references given by the data controller“, stated that personal data were exempt from the right of access: “if they consist of a reference given or to be given in confidence by the data controller for the purposes of … employment, or prospective … employment, of the data subject” (emphasis added) (paragraph 1, Schedule 7). You can see a circumstance where possibly a manager will say, "I think I can keep a lid on this. However, this opened the prospect that public sector employees would have preferential subject access rights merely because their employer was an “FOI public authority”. Your email address will not be published. They wouldn't be able to block an employer from saying, "Hold on a second. Thus, if a controller is a private body (that is, not an “FOI public authority”), then the processing of manual unstructured personal data is not subject to the DPA 2018 (section 21(2)). The controller who receives the reference, who can now argue that he or she has been “given a confidential reference” and refuse access. F… 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.". when the requestor faces an allegation … The Information Commissioner’s Subject Access Code of Practice suggests that the organisation should tell the employee that it needs the further information too. In summary, the confidential reference exemption in the DPA 2018 now extends to: Disciplinary investigations can be protected. 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. 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. This would protect an investigation until it had concluded. Under the ACAS Code of Practice on Disciplinary and Grievance Procedures, employers should always conduct a disciplinary meeting. 028 9032 1000 Following an investigation, she was invited to a disciplinary hearing on 5 September 2016. Can we continue with a disciplinary process if the employee leaves before the process has concluded? This could risk legal action. I'm going to keep them quiet and anonymous." It is not uncommon for somebody who is part-way through a process, such as a performance management process, sickness absence management process, redundancy situation or disciplinary process, to put in a subject access request under the Data Protection Act. 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