Subject access requests could provide an alternative route when questionnaires repealed
Employees who feel they may have been discriminated against often submit a statutory discrimination questionnaire to their employer. This allows them to obtain documents to support a discrimination claim at an earlier stage than would be possible through the tribunal disclosure process (tribunals may order a party in a dispute to disclose documents to the other party).
Repeal
The questionnaire procedure will be repealed in April 2014, partly because the government believes that responding to discrimination questionnaires is unduly onerous for employers. When this happens, employees could use instead ‘subject access requests’ (SARs) under the Data Protection Act 1998 to obtain personal data before lodging a tribunal claim (although this will not capture the wider information that a questionnaire typically demands). However, the Information Commissioner's subject access code of practice issued in August is a reminder that responding properly to a SAR is itself a fairly onerous – and potentially expensive – obligation.
Procedures
Although SARs are not new, employers may have to deal with them increasingly frequently as a precursor to litigation. Employers should review the code and, where necessary, update their procedures to make sure they handle such requests appropriately. HR staff should be properly trained to recognise a SAR. A request just has to be in writing: it does not have to be on a particular form, or specify it is a subject access request, or be addressed to a specific person. Once a valid request is received, including payment of a fee (maximum £10) if the employer requires this, there is a 40-day time limit for responding.
Response
In contrast, discrimination questionnaires typically use a statutory form and have an 8-week response time. It is also relatively common for an employer to refuse to provide some information requested in a discrimination questionnaire on the basis that it would be disproportionate to provide it. Employers cannot justify failing to respond to a SAR fully because it will be labour intensive or inconvenient. Employees can be asked to provide further information to help locate personal data, but not to narrow the scope of their request. It may be necessary to search archived or backed-up files, even though this may be more difficult than searching live systems. It would not, however, be necessary to restore information permanently deleted from computer systems.
Failing to respond adequately to a discrimination questionnaire may result in an inference of discrimination. Sanctions available for a failure to comply with a SAR include enforcement notices, court orders and fines of up to £500,000 if a breach is serious and likely to cause substantial damage or distress.
Third parties
Employers need to take care when the employee's personal data also contains information on a third party, such as a work colleague. It may be possible to separate this data from the employee’s, or to get the third party's consent to disclose it. Depending on the circumstances, it could still be reasonable to disclose the information, even without consent. In contrast, discrimination questionnaire responses would normally refuse to provide personal data relating to a third party.
Exemptions
Employers can refuse to provide certain information in response to a SAR in limited circumstances. Some employment references, management information that would prejudice the business, and data that would reveal the employer's negotiating position (such as internal documents about settling a possible claim from the employee) are exempt, as are documents that are legally privileged (typically communications between lawyers and their clients regarding litigation).
Claims
The code is clear that it will not be legitimate to refuse to comply with a SAR simply because the request is made in the context of potential legal proceedings. In practice, questionnaire responses may refuse to provide documents on the basis that the employee is seeking early disclosure, particularly where a tribunal claim has already been lodged.
Jo Broadbent is a senior professional support lawyer at Hogan Lovells
For more employment law
articles, visit HR-inform