You may have heard about your right to make a ‘subject access request’ and that this can be an effective way of encouraging your employer to enter into a settlement agreement with you. So here we look at what a subject access request is, and how best should you use your right to make one.
This article is written to help you understand your rights as an employee and to negotiate with your employer for a fair exit package. If would like advice on your case please request a free consultation or try our settlement agreement calculator to find out how much your case could be worth.
This guide covers:
What is a subject access request?
A subject access request was a right previously under the Data Protection Act 1998 and now under the EU General Data Protection Regulation (2018), to request all information that your employer (as a data controller) holds, which relates to you. Importantly it includes the right to request information contained on your employer’s computer system. For example, if your manager has been emailing people about you, you are entitled to see this information.
The courts have recently confirmed that you are entitled to this information even if you are just seeking evidence to use in a claim against your employer. Don’t let your employer tell you that you are not allowed to issue a subject access request to gather evidence for your claim.
Be aware though, although your employer has 40 days to respond to a subject access request, if they argue that the request is ‘manifestly excessive’ they can ask for up to three months to provide the information. 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.
Furthermore, although in the majority of cases there is no charge, it is actually for your employer to ‘charge a reasonable fee’. No one actually knows what this means yet and it will take some time for case law to develop and for that to become clear.
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 requested regarding you.
- Disproportionate requests: Your employer does not need to respond to a request if it would be “disproportionate” to do so. There is not much guidance on what would be disproportionate but it is important to ensure your request is targeted toward the information that you actually need to assist with your claim/grievance.
How can a subject access request assist in negotiating a settlement?
Making a subject access request can be a great way of obtaining a satisfactory settlement or improving an offer which 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. The documents that you obtain in response to your request should help your case, strengthening your negotiating position.
We have seen numerous cases whereby management have exchanged internal emails about the employee, discussing how to engineer their departure from the business. Even internal communications from HR have to be included in the documents disclosed in response to a subject access request. We have experience of smaller companies whose board members or bosses have denigrated employees in emails and WhatsApp groups and because of this, a 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 requested 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.
Sometimes however, making a subject access request can be counterproductive. If your settlement discussions are already progressing well, it can annoy your employer and make settlement harder. Also, large employers are used to dealing with such requests. This means the fact you have made a subject access request is unlikely to faze them, although you can still obtain useful information as a result.
How do I make a subject access request?
Making a subject access request is easy. All you need to do write to your employer requesting the personal information that they hold about you. Your employer should have a designated data protection officer, if you know who it is then your request should be sent directly to them.
Knowing exactly what you should be asking for is a bit harder. You should think about the following before making a request:
- What information would be of the most use 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 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.
The subject access request must be done on an open basis, so you shouldn’t refer to any communications you have had with your employer on a “without prejudice” basis. You can however refer to the subject access request in “without prejudice” communications.
Top TipsDippalli Naik
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;
Ensure your request is carefully targeted at the information that is likely to help your negotiation;
Include reference to named individuals who may have discussed you and the specific messaging services they may have used within identified date ranges.
We offer you 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. A lawyer can help you consider:
- Whether or not you should make the request, e.g. if your negotiations are already progressing well making a request may annoy your employer and harden their position
- What the scope of your request should be: lawyers are adept at knowing what information will help with your claim and 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.
Whether or not you decide to seek legal advice, you may like to browse our related Helpful Guides below:
- Evidence gathering in employment disputes: Making audio & video recordings
- Can employers monitor my communications?
- Discrimination questionnaire – Am I being discriminated against at work?
- Evidence gathering in employment disputes: Taking emails, letters & documents
- Evidence gathering in employment disputes: Taking emails, letters & documents
- Witness evidence for settlement agreements