An employer consulted a HR company about the dismissal of one of their employees for gross misconduct. The employee claimed he was unfairly dismissed and confirmed his intention to take the matter to an Employment Tribunal. The employee made a Subject Access Request (SAR) to the HR company.
However, the HR company took the decision not to release any information to the employee, relying on the exemption of litigation privilege. This was challenged by the employee, who made a complaint to the Information Commissioner’s Office (ICO). The HR company asked for our advice.
Individuals have a right to apply for one free copy of the personal information an organisation holds about them (a SAR). They do not need to give a reason for making the SAR. The organisation must supply the information without undue delay and, in any event, within one month, unless certain criteria are satisfied which allows for an extension of time or an exemption applies. Therefore, the employee was entitled to make the SAR to the HR company.
We found that the HR company had used a ‘blanket’ approach when applying the exemption of litigation privilege, as they had used it against the whole file on the employee, whereas they should have assessed each piece of information individually.
We reviewed the file, advised on what could be disclosed to the employee, what could be withheld and what needed to be redacted. On behalf of the HR company, we corresponded with the ICO and the employee and resolved the matter successfully.