It's about sitting down and working through the ups and the downs, the rights and wrongs and hopefully arriving at a fair decision. Employers should not refuse to respond to a SAR on the belief that it is made for an improper purpose. 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. Under the ACAS Code of Practice on Disciplinary and Grievance Procedures, employers should always conduct a disciplinary meeting. I'm going to keep them quiet and anonymous." Can we continue with a disciplinary process if the employee leaves before the process has concluded? If the result of a subject access request is that somebody else's privacy is infringed, then it's an adverse affect. Seamus: Yes. But where they have to, they'll make a decision and it will be based on the principles as we talked about in the Walkers Snack Food case. There's no indication from the email I got that it was the witnesses themselves were saying, "Keep me anonymous." Have the minutes of that meeting, subsequently circulated to attendees, been completely different to your recollections of the actual meeting? Your email address will not be published. Seamus: This is interesting in terms of subject access requests. 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. At discipline or the disciplinary hearing, I chose to withhold the employee's names as it served no purpose to disclose. . 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. when a third party’s personal data is intertwined with that of the requester?. . Part of that aspect absolutely could be that they were never allowed to cross-examine witnesses. 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? 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. There's a very stiff burden, if you like, on that. The Data Protection Act 2018 (DPA 2018) contains three provisions that allow an employer to resist subject access requests (SARs) from employees. 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. 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 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 from that there's a reduction in the time to provide the response to that to four weeks rather than six. They wouldn't be able to block an employer from saying, "Hold on a second. You have those sorts of issues. Contact telephone number is Scott: Also, controlling the process because this caller here, this listener here knows the situation. A third party can also make a SAR on behalf of another person. 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. The Guidance provided by the Information Commissioner's Office clarifies that the right of subject access is motive blind. 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.". 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. If it has just been received post-25th of May, it'll be under the new GDPR regime. 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." 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. The Data Protection Act 2018 (DPA 2018) contains three provisions that allow an employer to resist subject access requests (SARs) from employees. In most circumstances, you cannot charge a fee to deal with a request. 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