Posted on 23rd February 2017

A recent decision of the Court of Appeal has potentially significant implications for employment law practitioners. When commencing an employment tribunal claim there is a significant advantage in having a substantial chunk of the employer’s disclosure in advance of drafting the claim form. Commonly employees, or their representatives, make a subject access report, sometimes even before the employment has ended. A common response of employers is that they have no obligation to disclose material when the real purpose in seeking the documentation is the pursuit of litigation which, they maintain, is a collateral purpose. Some support for that response could be found in dicta of Auld J in Durant v Financial Services Authority [2004] FSR 573 where, referring to a subject access request, he said:

“It is not an automatic key to any information, readily accessible or not, of matter in which he may be named or involved. Nor is [it] to assist him, for example, to obtain discovery of documents that may assist him in litigation or complaints against third parties.”

There are many tactical advantages to employees in making a pre-action subject access request:

  • There may be a “smoking gun” which can be pleaded and will be highlighted in the tribunal’s mind even before they are handed the trial bundles and witness statements;
  • An employee may have a perception of the reason for their negative treatment but the true, and possibly also actionable, reason may be contained in documents of which they are unaware. Even if that documentation is disclosed subsequently, it may require an amendment and that may raise limitation issues;
  • Once the pleaded case is advanced, disclosure will be limited to what is relevant and necessary to deal with the pleaded case and that may not include documentation which would be produced pursuant to a subject access request.
  • Dealing with a subject access request may encourage an early settlement offer.

A central concern, therefore, is whether an employer can legitimately decline to produce documentation following a subject access request when one of the purposes is to seek advanced disclosure in connection with litigation.

That issue was addressed by the Court of Appeal in Dawson-Damer & others v Taylor Wessing LLP [2017] EWCA Civ 74. The Court of Appeal considered the issues raised to be of sufficient importance to invite the Information Commissioner to intervene.

It was not an employment case but concerned an application by the beneficiary of a Bahamian trust for a declaration that the solicitors to the trustees of the trust had failed to comply with a subject access request and for an order compelling them to comply. Under S.7(9) the court has a discretion whether or not to make such a peremptory order.

Reversing the decision of HHJ Behrens, the Court of Appeal decided that there was no “no other purpose” rule. The dicta of Auld J in the Durant case was merely emphasising the limited nature of personal data. Subject to defences such as litigation privilege and disproportionate effort, a person is entitled to production of their personal data but the mere fact that documents may assist that person in their actual or proposed litigation does not make the data personal data. There are differences between personal data and disclosable material. The Court of Appeal could find no reason for declining to exercise the discretion to make an order requiring compliance with the request.

The Court of Appeal did not consider that there was any improper purpose because the appellants were seeking access to their data “to establish whether decisions that have directly affected them have been taken on the basis of accurate information.” That would appear to apply equally to an employee seeking access to minutes of disciplinary or grievance hearings involving him, his personnel file and any emails between decision makers impacting upon his treatment.

Subject access requests are therefore likely to become increasingly common and failure to comply may, in appropriate cases, be material from which a tribunal could draw an adverse inference impacting both upon the burden of proof and the tribunal’s perception of the overall merits of the case.