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Subject Access Requests (or SARs) are increasingly being used as a powerful tool in a disgruntled employee’s armoury, especially if they decide to “shop around” to establish whether there is sufficient evidence to take their employer to Tribunal, or “persuade” the employer to let then go within an enhanced termination package now.
While the process for dealing with such a request is not necessarily something all Managers need to be aware of, understanding the information that can be revealed is something it is crucial everyone understands.
More and more communication is committed to email and other electronic forms. So, all of those “off-the-cuff” remarks, flights of fantasy, fits of rage and frustration written down in emails do not play well in a courtroom, especially when you are trying to persuade a Tribunal that you behaved professionally and fairly.
In one case recently, which our client won, we had to read carefully through over 350 separate documents, none of which revealed anything remotely culpable, but nevertheless, could have done had a different organisation been investigated in the same way.
The Tribunal Playbook goes something like this:
The Claimant submits their ET claim currently within 13 weeks of leaving the organisation; this timeframe can be longer in discrimination and redundancy cases.
They are put in touch with ACAS who tries to resolve the situation, but it is not compulsory on a Claimant to agree to Early Conciliation.
At the same time, their solicitor advises them to go on a “fishing expedition” with an SAR.
The employer is then duty-bound to reveal everything relevant that has been recorded electronically about that individual from:
their HR record;
emails on the organisation’s server relevant to them;
correspondence with suppliers and external consultants;
documents held from the organisation’s hard drive and cloud storage;
Not only does this cause an enormous amount of work, but the Claimant is hoping to find just one or two nuggets.
“We need to get rid of Joe Bloggs”; “Joe Bloggs has been underperforming for some time, can we make him redundant?”; “Is it about time Joe Bloggs retired?”; “I am sick and tired of Joe Bloggs attitude, we need to get rid of him as soon as possible”; “Is Joe Bloggs getting too old for the job?”;
We have received emails from clients with all of these comments, often within the email heading!!!
Such smoking guns can prove disastrous in the courtroom. How can you say his Director/Manager was genuinely impartial at his disciplinary hearing, when he sent such an email to a colleague several months before?
So, the question “Are you prepared for an SAR?” does not mean, do you know how to handle one? It means something very different. Is your organisation properly trained in the best way to express concerns in writing and communicate them to others?
Some Key Pointers
When expressing frustration in writing about employees, do not name them or identify them.
Better still, pick up the phone if you want to consider different scenarios regarding an employee. Unless you record every one of your phone calls, such telephone calls are not disclosable. The same goes for video conferences.
Be professional when recording information on the database. Conjecture and exploratory conversations with others should not be included.
The law on information is onerous on employers. While email is such an easy form of communication, the fact that it is traceable and recordable makes it a very dangerous medium internally to communicate. All Managers and Supervisors should be made aware of.
There is, however, one exception which is that handwritten notes, made in the context of someone’s employment, do not have to be declared as part of a SAR, and that also goes for the handwritten notes taken by someone tasked with writing up a formal record of a meeting.
So, a good rule of thumb is to imagine that the employee was sitting right next to you. How would they react if you said directly to them the same comments that you are considering writing in an email to others about them? Because after a SAR they might be reading it, and so could a Judge.
Clients are welcome to raise any concerns with our Consultant team, who would be pleased to advise you on any element of the issues arising from this newsletter.