What would your business do if an employee asked to see their HR records by making a Subject Access Request?

Under section 7 of the Data Protection Act 1998 (DPA) employees are entitled to make a data “subject access request” (SAR) to see a copy of the information an organisation holds about them.

On the payment of a fee of not more than £10, employees are entitled to know what information is held about them, and to receive copies of that information. SAR’s should be actioned promptly and normally within 40 calendar days.

However, the right of access goes further than this, and an employee who makes a written request and pays a fee is entitled to be:

• ·        told whether any personal data is being processed;
• ·        given a description of the personal data, the reasons it is being processed, and whether it will be given to any other organisations or people;
• ·        given a copy of the information comprising the data; and given details of the source of the data (where this is available).

Employees may make a ‘subject access request’ on payment of a fee of not more than £10. They are entitled to know what information is held about them and to receive copies of that information. Subject access requests should be actioned promptly and normally within 40 calendar days.

An employer can challenge or limit a SAR in a number of ways. If the request is very wide the employer can legitimately ask the employee to narrow it so that it is more focused and proportionate. It may be sensible to seek to agree with the employee making the request the search terms to be used, the time period in respect of which a search is to be carried out.

An SAR gives an employee the right to the information rather than documents. Consequently, if an employee’s record identifies a 3^rd party who hasn’t given their permission and it would not be reasonable to give the employee access to those records, then the documents/records can be redacted.

 Also, some of the data may fall into one of the categories which are exempt from disclosure in response to a SAR – examples include where the data is covered by legal privilege, or where data relates to the prevention of crime or the assessment or collection of taxes.

Recent Case Law makes it more difficult for employers to challenge SARs which they consider are fishing expeditions. Other case law although not based on employment makes it clear that a failure to comply with a SAR may exacerbate any procedural inadequacies in a disciplinary or grievance process. The ICO Code of Practice   and recent case law show that employers must take SARs seriously.

This article was posted by Sean McCann the Managing Director of People Based Solutions an outsourced HR consultancy that offers advice,and support toSME’s in managing their employer compliance obligations 

Post Brexit Britain is an uncertain place for employers and employees alike. Particularly for those employees who have migrated from the EU.

Political Uncertainty

Doubts about what Brexit will look like, particularly what aspects of the “European Market” the UK will sign up to have added to the uncertainty.  There is political confusion regarding how and when Article 50 will be triggered.  Putting the time table to one side, the Government are clear that it is its prerogative to trigger Article 50. However other are saying the Government should not trigger Article 50 to leave the EU without first consulting Parliament.  They claim that to plough ahead with a major change without explicit parliamentary approval will set a disturbing precedent. Should Parliament be consulted, there is no guarantee that a negotiating mandate will be given. As many in Parliament oppose Brexit. They may, as a minimum, call for a second referendum or a General Election to give the government a negotiating mandate on the terms they have set.  This political uncertainty does not help business as they consider hiring and investment decisions.
A survey last month from  CIPD/Adecco Group UK & Ireland Labour Market Outlook. the UK’s decision to leave the European Union had resulted in a softening in employers’ hiring intentions.

Brexit and employer hiring intentions

The survey shows that employers were somewhat more optimistic in their hiring intentions s ahead of the EU Referendum than they were afterwards.  The proportion of employers expecting to increase staffing levels over the next three months dropped by 4 percentage points from 40% to 36% post Brexit.

Brexit: costs and investment decisions

The survey finds that many employers expect Brexit to have a significant negative impact on costs and business investment decisions: 33% of employers expect Brexit will have the effect of increasing their costs, compared with 4% that think the opposite

Brexit and Employment of EU migrants

Almost two in three employers said that they currently employ some EU migrants. Also one in five employers (20%) thought that some of their migrant workforce were already considering leaving the UK over the next 12 months.

Information sought by UK employers post Brexit

According to the survey, roughly two in five wanted information around employment law and regulations (45%) or areas such as working time or the employment of agency workers (41%). Around 30% identified access to the single market and migration policy as a key area, with the public sector (39%) highlighting migration policy as a particular concern in comparison to private sector companies.
Since this survey, things have become less certain. Employers have become more cautious post Brexit. But for many it is ‘business as usual’. Hiring and investment intentions remain positive. However, a number of organisations are putting contingencies in place. Let’s hope they don’t over react.

This article was posted by Sean McCann the Managing Director of People Based Solutions, an HR consultancy specialising in out sourced HR and support for small to medium sized businesses.