Use of subject access requests in employment disputes

Despite the Court of Appeal case of Durant v FSA making it clear that employees should not use subject access requests (SARs) to embark on ‘fishing expeditions’, it would appear that employees are continuing to do just that. SARs are often used as a mechanism for pre-action disclosure by current or former employees for the purposes of actual or intended litigation.

While the Civil Procedure Rules and the Tribunal Rules require employees to demonstrate the relevance of documents disclosed, no justification is required to submit a SAR. Plus at a cost to the employee of just £10 (which many employers choose to waive), it is a relatively easy and cheap tactic for employees to use.

In contrast, employers face the time-consuming, costly and complex process of searching through large amounts of computerised and non-computerised data. If an employee insists that they want all personal data relating to them, subject to the exemptions outlined in this briefing, there is little the employer can do other than to undertake an exhaustive search. When made in the midst of a dispute or with a dispute on the horizon, along with the threat of enforcement by the Information Commissioner’s Office (ICO), the pressure on employers can be intense…

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