January 31, 2024
When preparing for an Employee Tribunal, the possibility of making a “subject access request” may have come up. This request could in fact help build a case and provide evidence, or even encourage an employer to enter into a settlement agreement.
In this article, we will be taking a closer look at what a subject access request is, how to request one, what is included and other expectations.
What is a Subject Access Request?
Under the EU General Data Protection Regulation (2018), employees have the right to a subject access request. This is where an employee can ask for all information relating to them that the employer has access to, including on their computer system.
Employees can request emails and other information to use as evidence, and there is the possibility that employers will ‘charge a reasonable fee’ to cover costs if multiple copies are required.
How Do I Make a Subject Access Request?
To make a subject access request, it must be written to the employer asking for the personal information relating to the employee that they have access to. If the employer has a designated data protection officer, this written request should be sent directly to them.
Within this written request, it should detail the information the employee would like access to. However, it’s important to not ask for too much information otherwise the employer can argue this is ‘manifestly excessive’ and take longer to provide it. They may also charge or even refuse to provide it.
Consider what information would be most useful and what information the employer is willing to share. Pinpoint the timeframes and authors to request information from and think about the different types of communication channels that are used within the workplace, e.g. emails, SMS text messages, social media chats, and WhatsApp threads.
It’s important to remember that if the employer states a subject access request is not allowed, this is untrue.
What Can Be Excluded From a Subject Access Request?
There are some exclusions when it comes to a subject access request. This includes documents containing information about other employees, documents subject to legal privilege, and requests that are deemed disproportionate.
Employers have the right to not disclose details of any legal advice they have sought about the case and to decide what is considered as a disproportionate request. Employees may not always receive all of the information they have requested due to exemptions or if the information is not covered by a subject access request.
How Long Should I Expect to Receive the Information?
Ideally, the employer should respond as quickly as possible and within a calendar month of the request. However, if they consider the request to be ‘manifestly excessive’, it can be up to three months before they provide the information.
It may also take longer than a month if the subject access request is complex or if multiple requests have been made. Preferably, employers will notify the employee if it will take longer than a month to complete it. Also, employers should let employees know if they process personal information or not; if so, they should give them copies of it and provide details about storing it.
Should I Ask For Legal Advice When Making a Subject Access Request?
When preparing for an employee tribunal, it’s always a good idea to ask for legal advice. With subject access requests, it’s helpful to ask an experienced solicitor to determine the scope of the request so it is not disproportionate but will still benefit the claim. At Premier Legal, our employment tribunal representation solicitors support you at every step of the process and advise whether it’s best to defend a claim or reach a settlement agreement. Get in touch with us today to discuss your requirements with our experts.