Discovery by a different name? Data subject access requests from a post-employment perspective

Employers inevitably process personal data of their employees. Under the Data Protection Act 1998 (DPA), employees have the right to obtain, on valid request, a description of the personal data of which the employee is the subject, the purposes for which the data is held, and the recipients of it.

Subject access requests (SARs) are applications made by individuals to enforce this right and although the courts have ruled against SARs being used for ‘fishing expeditions’ for the purposes of litigation, employees are increasingly using them to obtain information for use in claims against their ex-employers.

SARs can be particularly useful where the information the employee requires is not available through traditional disclosure. This commonly arises where the employee either cannot demonstrate that the document in question is relevant to the ongoing litigation (a fairly narrow test), or does not want to go to the trouble of doing so. SARs potentially give employees access to a wider range of documents and information in addition to or in conjunction with traditional disclosure. Employees also use SARS (currently subject to a maximum fee of £10) as a simple and cost-effective way to be difficult and to increase their ex-employers’ use of management resources and legal costs…

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