Subject access requests made by employees

You may have heard about your right to make an employee 'subject access request' and that this can be an effective way of encouraging your employer to enter into a settlement agreement with you.

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    So here we look at what a subject access request is, and how best should you use your right to make one as part of negotiations with your employer for a fair exit package.

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    What is a subject access request?

    An employee data subject access request is a right under the EU General Data Protection Regulation (2018), to ask for all information relating to you that your employer (as a data controller) holds.

    Importantly it includes the right to seek information contained on your employerā€™s computer system. For example, if your manager has been emailing people about you, you are entitled to see this information.

    You are entitled to this information even if you are just seeking evidence to use in a claim against your employer.

    Donā€™t let your employer tell you that you are not allowed to issue a subject access request to gather evidence for your claim.

    Your employer must respond as quickly as possible, and at the latest within a calendar month of the subject access request.

    However, if they argue that the information you are seeking is ‘manifestly excessive’ they can ask for up to three months to provide it.

    So be careful, because if you ask for too much information then inevitably your employer will play the ‘manifestly excessive’ card and drag the whole thing out for months.

    In the majority of cases, there is no charge to the employee. However, your employer can ‘charge a reasonable fee’ to cover their costs if you ask for more than one copy of the information.

    They can also charge if the information you’ve requested is ‘manifestly unfounded or excessive’ and even refuse to provide the information in those circumstances.

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    Does an employer need to provide every document that mentions you?

    There are some limitations to what your employer needs to provide you in response to a subject access request. Exceptions include:

    Documents containing information about others:

    If any document contains information about someone else, your employer may be able to exclude this document or to delete the information about the other person.

    This can make what is left in the document hard to follow.

    Documents subject to legal privilege:

    Your employer does not need to disclose details of any legal advice that they may have sought about your case.

    Disproportionate requests:

    Your employer need not respond to your submission if it would be ā€œdisproportionateā€ to do so.

    There is not much guidance on what would be disproportionate but it is important to ensure that the information you ask for is targeted toward the information that you actually need to assist with your claim/grievance.

     

    How can a subject access request help settlement negotiations?

    Making a subject access request can be a great way of obtaining a satisfactory settlementĀ or improving an offer that is already on the table.

    Sometimes your employer may be aware of incriminating emails about you and may want to settle to avoid these emails surfacing.

    TheĀ Ā documentsĀ  that you obtain in response to your request should help your case, strengthening your negotiating position.

    Even internal communications from HR have to be included in the documents disclosed in response to a subject access request.

    We have seen numerous cases whereby management have exchanged internal emails about the employee, discussing how to engineer their departure from the business.

    We have experience of smaller companies whose board members or bosses have denigrated employees in emails and WhatsApp groups.

    Because of this, an employee data subject access request has really brought them speedily to the negotiation table.

    Even if your employer has nothing to hide, searching for and reviewing the information you have asked for can cost your employer a lot of money in time and resources.

    Sometimes an employer will agree to settle just to avoid the costs associated with complying with a subject access request.

     

    When a subject access request can be counterproductive

    If your settlement discussions are already progressing well, it can annoy your employer and make any settlement harder.

    Also, large employers are used to dealing with such requests. This meansĀ the fact you have made one is unlikely to faze them, although you can still obtain useful information as a result.

     

    How do I make a subject access request?

    All you need to do is write to your employer asking for the personal information that they hold about you.

    Your employer should have a designated data protection officer. If you know who that person is then your letter or email should be sent directly to them.

    What information to ask for

    Knowing exactly what you should be asking for is a bit harder. You should think about the following before writing:

    • What information would be most useful to you to assist with your claim/grievance?
    • What information is your employer least willing to disclose?
    • Who is likely to be the author of the information you need?
    • What types of communication are used in your organisation e.g. email, Slack, IM, text message, chat rooms etc.?
    • What time periods are likely to include relevant information?

     

    Once you have considered this information you should ensure your subject access request is targeted towards it to avoid your request being disproportionate.

    Say which types of communications you want to be searched, involving which people, and between which dates.

    It is also helpful to provide suggested search terms e.g. your first and last name or initials.

    Some people are surprised that even SMS text messages, Facebook messages and WhatsApp communications can be used as evidence in a tribunal claim.

     

    A subject access request must be made on an ‘open’ basis

    This means that you shouldnā€™t refer to any communications you may already have had with your employer on a ā€œwithout prejudiceā€ basis.

    You can however refer to the subject access request in ā€œwithout prejudiceā€ communications.

    Alex Monaco

    Top Tips

    Alex Monaco

    1. Consider carefully whether a subject access request will help you or whether you will only annoy your employer and make a settlement agreement less likely;

    2. Ensure your request is carefully targeted at the information most likely to help your negotiation;

    3. Include reference to named individuals who may have discussed you and the specific messaging services they may have used, with identified date ranges.

    We offer youĀ  a selection of subject access request examples/templates from real case studies that you can use as a starting point, and then edit the content to apply to your specific situation

    Do I need legal advice to make a subject access request?

    Although making a subject access request is a straightforward process, you do need to consider how it fits in with your wider negotiating strategy.Ā  An experienced employment law solicitor can help you consider:

    Whether or not you should make the request, e.g. if your negotiations are already progressing well asking for more information may annoy your employer and harden their position

    What the scope of your request should be: good employment law solicitors are adept at knowing what information will help with your claim.

    They can assist with determining the scope of your request to ensure that it is effective but not disproportionate

    How best to use the fact you have made a subject access request to maximise your settlement offer.

     

    Next steps

    Whether or not you decide to seek legal advice, you may like to browse our subject access request templates and related Helpful Guides below.

    Monaco Solicitors are specialist employment law solicitors representing employees only.

    Our services are highly competitive and flexible, so if you would like help in any of the ways outlined above, or with any other kind of legal advice on your employment law case, then do get in touch:

    • By this website link
    • By phone onĀ Ā 020 7717 5259
    • By email:Ā communications@monacosolicitors.co.uk