UK: Changes To Subject Access Requests Under The European Union General Data Protection Regulation

Under the Data Protection Act 1998 ("DPA"), both current and former employees have a right to see a copy of the personal data that their employer retains about them. Employees can engage this right by submitting a Subject Access Request ("SAR") to their employer.

Employees have a right to:

  • be told whether any of their personal data is being processed;
  • be given a description of their personal data and the purpose for which the employer processes it;
  • be told to whom the employer discloses the information;
  • be given a copy of any personal data the employer holds about them; and
  • be given any sources of the data where it is possible to do so.

The employer must comply and provide a prompt response within 40 days of the written SAR. However, this can be varied in certain circumstances. For example, if the employee's data includes that of a third party.

It is currently possible for employers to charge a fee for dealing with an SAR, with the usual maximum charge being £10. However, the charge could increase if the employee seeks special categories of data. Employers may also extend the 40 day response period if they need to confirm the identity of the individual requesting the information, or if they need to locate further information that the individual seeks.

SAR under GDPR

On 25 May 2018, the General Data Protection Regulation ("GDPR") comes into force and employees will continue to have the right to access their personal data. The aim of the GDPR is to allow data subjects to be aware of and verify the lawfulness of processing their personal data.

Under the GDPR it will be free for an employee to submit an SAR. However, employers may charge a "reasonable fee" if they need to take into account administrative costs if the request is tenuous or excessive. The employer may also charge a fee if further copies are requested by the employee. If the SAR request is tenuous or excessive, instead of charging a fee, the employer may refuse to respond to the request. The employer should explain the reasoning for the refusal and inform the employee of his or her right to complain either to the Information Commissioner's Office or to the court within one month of receipt of the SAR. If the employee follows through with the complaint, the employer should be prepared to demonstrate why the SAR was tenuous or excessive.

Under the GDPR, the employer will have less time to respond to an SAR. Personal data must be provided as soon as possible, typically within one month of receipt of the SAR. It is possible for the employer to extend the period of compliance by a further two months if the SAR application is complex and/or there are a number of requests involved. In such cases, the employer must notify the employee within one month of receipt of the SAR and give reasons for the extension.

What is the impact on your organisation?

The abolition of the SAR fee will likely increase the number of SARs that employers receive. Additionally, employers will have less time to respond. Therefore, with the GDPR coming into force very soon, it is important for employers to review and update their SAR systems and procedures so that they are GDPR compliant now in preparation for the May 2018 deadline.

In other news...

  1. In Capita Customer Management Ltd v Ali, the EAT held that a failure to pay a male employee enhanced shared parental pay, where an employer paid enhanced pay to mothers on maternity leave, was not direct sex discrimination. The EAT examined the Pregnant Workers Directive and its objectives, which relate to the health and wellbeing of the pregnant/birth mother. As a result, the EAT decided that parental leave was different to maternity leave. In contrast, the Parental Leave Directive focuses on childcare, making no provision for pay. Therefore, maternity leave and pay are for the health and wellbeing of the mother, whereas the purpose for statutory parental leave is for the care of the beneficiary's child.

    The correct comparison for Mr Ali should have been a woman on shared parental leave on the same terms as opposed to a mother taking maternity leave.

  2. Gatwick airport had to temporarily shut its runway four times through Sunday 8 April and Monday 9 April due to staff sickness. Several inbound flights were diverted or delayed due to the staff shortage. Only one controller out of the scheduled three was able to work in the control tower, resulting in the runway having to close every time he took his mandatory breaks. At this time, Gatwick airport has not released any contingency plans for the future but reports that the staffing issue has been resolved. A spokesman for the airport simply confirmed that the runway closed "due to a shortage of available air traffic controllers during the night shift". He added: "We worked closely with air traffic controllers and airlines to minimise the impact to passengers. We apologise for the inconvenience caused."
  3. An employer is not required to revoke a decision to dismiss an employee following notification of pregnancy if the decision to dismiss was made prior to the notification. In other words, in claims for unfair dismissal regarding pregnancy and pregnancy discrimination, an employer must know that an employee was pregnant when it made the decision to dismiss the employee for the claim to stand. In Really Easy Car Credit Ltd v Thompson, the EAT decided that the employment tribunal erred in upholding the employee's claim as the employer made the decision to dismiss before the employee had notified her employer of her pregnancy—even though the employer communicated its decision to dismiss after notification. The EAT stated that an employer is under no obligation to revisit a decision to dismiss if it is notified of the employee's pregnancy after it has made the dismissal decision.  
  4. 4.A former employee of Tesco failed in her unfair dismissal claim after the employment tribunal found that her employer held a reasonable investigation into potential theft. Frances Nicholson was employed as a checkout customer assistant from May 2009 until June 2017. After many meetings and significant training on till processes, Nicholson's till continued to be found short on several occasions and the store's customer services manager conducted an investigation. Store management placed her on a "clean till," which meant that she was the sole operator of the till and her till was checked at the beginning and end of each of her shifts. There was also CCTV footage that showed her putting something in her pocket. Nicholson claimed that the process was unfair due to the investigating officer disliking her and she also claimed that he was biased against her. However, the tribunal held that the supermarket was justified in dismissing her and had followed relevant procedure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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