Employees denied access to information

Laytons (www.laytons.com), the national firm of solicitors, are today welcoming guidance from the Court of Appeal on the type of information employees can request access to from their employers. Under the Data Protection Act 1998, employees have had the right to request disclosure of all personal data held about them. The landmark decision in Durant v Financial Services Authority has clarified what is meant by ípersonal dataí enabling employers to now restrict the amount of information they have previously had to divulge.

íThe decision is likely to be welcomed by employers who often find such requests cumbersome, costly and time consuming. Too often employers find requests are made to assist the employee with a workplace complaint or dispute.í Says Tim Randles, Head of Employment, Laytons Solicitors, Guildford. íThe court has specified that the purpose of such a request is to allow the employee to check whether the way that his data has been processed infringes his privacy and if it has to take steps to protect it. It is not an automatic right to obtain any information about matters in which the employee may be involved.í

The court has helped by clarifying that ípersonal dataí means data that affects an employeeís privacy, whether to do with his personal life or his work, and either has the employee as its focus or contains some biographical data about the person. The mere mention of the employeeís name in a document does not categorise the information as ípersonal dataí.

íSimply mentioning the employee when speaking about the performance of a particular department within the employerís business will not qualify as personal data, but referring to the employeeís salary will certainly fall within the definition.í Says Randles.

The court has also gone on to look at how the data is stored. The right to request disclosure under the Act only applies to data held on computer or where it forms part of a ìrelevant filing systemí. What is meant by a írelevant filing systemî is one that permits access in a way similar to that of a computer system. It must identify where personal data is contained within the system and with each employeeís file specify where particular data is held, for instance arranging the employeeís file into sections dealing with salary, holiday entitlement and sickness. So a file simply marked with the employeeís name and organised by date order will fall outside any right to access.

íHaving a manual filing system that requires someone to leaf through documents to find personal data will not ensure a right to access.í Continues Randles íThe Information Commissioner has in fact offered some guidance in light of this case and suggested that employers when deciding if a manual system is covered by the Act should ask themselves whether a temporary administrator would be able to extract specific information about an individual without a detailed explanation of how the filing system works. If they can then it falls within the Act, if not, then the information cannot be disclosed. í

íWhat this means in practice is that much less information will need to be disclosed if a request is made. The burden on the employer is eased by the fact that the employeeís right to make a request to see personal data is not an automatic right to see information about all matters in which the employee may be involved. The court has achieved a better balancing of the rights of the employer and the employee.í Randles concludes.