Data Subject Access Requests – a call to action!

The Information Commissioner (ICO) has launched a consultation on its Draft Right of Access Guidance. This represents a chance to have your say on how the ICO advises dealing with request for personal data. Given the rapid rise in subject access requests seen by employers and the (in our view) sometimes questionable basis for requests, we encourage employers to make their voices heard.

As readers will know, the right of access to personal data is one of the key rights brought in by the Data Protection Act 2018 (which put into effect “GDPR”). It is fundamental for individuals to be able to find out what personal data is held about them from any organisation which holds their data and obtain a copy of it. We see ‘subject access requests’ being used on a regular basis by individuals seeking evidence to support possible litigation. Some might take the view that the more wide-ranging of these requests are not consistent with the original purpose of the ‘GDPR’ – upholding the data subject’s right to know what information is held about them is, of course a basic right, but it can be difficult to balance the individual right against the enormous effort involved in dealing with some of the highly detailed requests we’ve seen.

The new draft guidance provides a greater level of detail than previously published guidance, explaining the rights that individuals have to access their personal data and the obligations on controllers. In addition, the draft guidance explores the special rules involving certain categories of personal data, how to deal with requests involving the personal data of others, and the exemptions that are most likely to apply in practice when handling a request.

The ICO consultation on the guidance closes on 12 February 2020. Views gathered will inform the published version of the guidance by helping the ICO to understand which areas organisations are seeking further clarity on, taking into account their experiences in dealing with subject access requests since May 2018. Here’s your chance to be heard – https://ico.org.uk/about-the-ico/ico-and-stakeholder-consultations/ico-consultation-on-the-draft-right-of-access-guidance/

Arguments that she was partly to blame for her own dismissal and that she had failed to take adequate steps to mitigate her loss were also rejected. The EAT accepted that the reasons the ET gave for awarding her 40 weeks’ net loss of pay were inadequate. The same ET was directed to consider that issue afresh, but the firm’s appeal was in all other respects dismissed.

There are, of course, instances of serious misconduct where an employer may wish to suspend the employee under investigation. This may be appropriate where there is a potential threat to the business or the safety of other employees, or where it is not possible to properly investigate the allegation if an employee remains at work. It might also be appropriate if there is a fear that the employee could destroy evidence or attempt to influence witnesses. Careful consideration of whether such there really is such risk, rather than suspending as a ‘knee-jerk’ reaction will assist an employer trying to avoid the impression of having pre-judged the issue, and reduce the risk of a successful  unfair dismissal claim.

If you would like further advice tailored to your particular circumstances, please give us a call.