The Overlapping Obligations of Disclosure in Employment Tribunal Claims
by Shoosmiths LLP
We look at what employers should consider when dealing with a data subject access request ('DSAR') made when tribunal proceedings are involved. The obligations to comply with a DSAR and disclosure in litigation are governed by two distinct processes.
As part of their privacy rights an employee has the right to request from their employer a copy of their personal data, through making a DSAR. This can be made verbally, in writing, and on social media platforms, and the employer has one month with a potential extension of a further two months, to comply.
Disclosure in the Tribunal
Document disclosure is an important step in the tribunal process and is an ongoing duty on each party. All documents relevant to the issues in the claim, including those which adversely affect a party’s case, should be disclosed to the other side.
Increasingly, employees are raising a DSAR either before or during employment tribunal proceedings; the reasons for this often relate to the employee seeking to strengthen their claim against their employer, or to gain early access to documents in proceedings.
The Court of Appeal in Dawson Damer v Taylor Wessing LLP held that a DSAR will be valid even if a reason for the request is to obtain information for the purposes of litigation. However, as there are different considerations in response to DSAR and litigation disclosure, the information pertinent to a DSAR response may not necessarily reveal information relevant to the claim.
The ICO considered the overlap of DSARs and litigation proceedings in a case involving First Choice Selection Services Ltd. As a result of the employer’s failure to comply with a DSAR raised during tribunal proceedings, an enforcement notice was issued by the ICO (the tribunal had no jurisdiction to compel a DSAR response).
In both litigation proceedings and DSARs, the parties cannot destroy any documents that they uncover, even if documents appear irrelevant and unhelpful. To do so would breach legal obligations.
Exemptions to disclosure
In both scenarios, legally privileged documents are exempted from disclosure. Legally privileged documents include communications between a party and their legal adviser where the dominant purpose is providing legal advice. Confidential communications between a party and their legal adviser and a third party (such as an expert witness) will also be privileged if its dominant purpose is in connection with actual or contemplated litigation.
For DSAR responses, there are additional exemptions to disclosure, the exemptions most likely in a tribunal setting being:
- a reference given in confidence for employment, training or educational purposes;
- where personal data is processed for management forecasting or planning, such as planning for a redundancy project, where disclosure would be likely to prejudice the conduct of that business or activity
- where personal data is processed which records the employer’s intentions on negotiations with its employee, where disclosure would be likely to prejudice those negotiations
- where a request is considered manifestly unfounded or excessive; such as where an employee’s motivation is to harass the employer or be disruptive, or where DSARs are made repeatedly over a short period of time.
Third party data (including witnesses) is also exempt from disclosing information about a third party except where they consent to such disclosure or where it is reasonable to disclose without consent (having carried out a balancing exercise between the employee’s right of access and the third party’s privacy rights).
Often, the employer will redact third party personal data in a DSAR response but will the employee be entitled to unredacted documents as part of the tribunal disclosure which have previously been disclosed in the DSAR?
Case law has confirmed that there is no legal obligation to disclose content which is not relevant to the issues to be determined in tribunal proceedings. Whilst an entire document may be helpful for context, if documents contain irrelevant information, parties can apply for an order to remove this information. In making an order, a tribunal will consider if such information is commercially sensitive or confidential.
Parties can also apply for an order to anonymise the identity of witnesses or other persons referred to in documents as was the case in Frewer v. Google UK Ltd & Ors. However, the tribunal must weigh up the need to protect the rights and interests of that person against the principles of open justice that proceedings should be open to the public and media, to allow wider scrutiny of decisions. Parties should be mindful that adopting a heavy redaction exercise could therefore be criticised by a tribunal.
Practical Tips for Employers for disclosure in tribunal proceedings
- What is the request in relation to and what are your obligations under the appropriate legal process.
- Is the request being made tactically in a DSAR; are there exemptions which may apply?
- Ensure you comply with disclosure within the relevant time limits.
- Disclose only documents which are relevant to the tribunal claim and be careful of over-redacting.
- If there is any dispute about which documents are to be disclosed in litigation, it is prudent to keep these in a separate bundle for the tribunal’s consideration at the outset of the hearing.