What is a 'subject access request'? And should I make one?

You may have heard about your right to make a 'subject access request' and that this can be an effective way of encouraging your employer to enter into a settlement agreement with you. So here we look at what a subject access request is, and how best should you use your right to make one.

This article is written to help you, the employee, to understand your rights and to negotiate with your employer for a fair exit package. If would like advice on your case please request a free consultation or try our settlement agreement calculator to find out how much your case could be worth.

What is a subject access request?

A subject access request was previously a right under the Data Protection Act 1998 and now under the EU General Data Protection Regulation, to request all information that your employer (as a data controller) holds, which relates to you. Importantly it includes the right to request information contained on your employer’s computer system. If your manager has been emailing people about you, you are entitled to see this information.

The courts have recently confirmed that you are entitled to this information even if you are just seeking evidence to use in a claim against your employer. Don’t let your employer tell you that you are not allowed to issue a subject access request to gather evidence for your claim. Be aware though, your employer has 30 days to respond to a subject access request, but if they argue that the request is complex and time consuming they can ask for up to three months to provide the information. In the majority of cases, there is no charge but it is open in some cases to charge a reasonable fee.

Does an employer need to provide every document that mentions you?

There are some limitations to what your employer needs to provide you in response to a subject access request. Exceptions include:

• Documents containing information about others: If any document contains information about someone else, your employer may be able to exclude this document or to delete the information about the other person. This can make what is left in the document hard to follow.
• Documents subject to legal privilege: Your employer does not need to disclose details of any legal advice that they may have requested regarding you.
• Disproportionate requests: Your employer does not need to respond to a request if it would be “disproportionate” to do so. There is not much guidance on what would be “disproportionate” but it is important to ensure your request is targeted toward the information that you actually need to assist with your claim/grievance.

How can a subject access request assist in negotiating a settlement agreement?

Making a subject access request can be a great way of obtaining a satisfactory settlement agreement or improving an ex-gratia offer which is already on the table. Sometimes your employer may be aware of incriminating emails about you and may want to settle out of court to avoid these emails surfacing. You may also obtain documents in response to your request which help your case, strengthening your negotiating position.

Even if your employer has nothing to hide, searching for and reviewing the information you have requested can cost your employer a lot of money in time and resources. Sometimes an employer will agree to settle just to avoid the costs associated with a subject access request.

Be aware though, sometimes making a subject access request can be counterproductive. If your settlement discussions are already progressing well, it can annoy your employer and make settlement harder. Also, large employers are used to dealing with such requests. This means the fact you have made a subject access request is unlikely to faze them, although you can still obtain useful information as a result.

How do I make a subject access request?

 Making a subject access request is easy. All you need to do is write to your employer requesting the personal information that they hold about you. Your employer should have a designated data protection officer, if you know who it is then your request should be sent directly to them.

Knowing exactly what you should be asking for is a bit harder. You should think about the following before making a request:

• What information would be of the most use to you to assist with your claim/grievance?
• What information is your employer least willing to disclose?
• Who is likely to be the author of the information you need?
• What types of communication are used in your organisation e.g. email, Slack, instant messaging services, text messages, chat rooms etc.?
• What time periods are likely to include relevant information?

Once you have considered this information you should ensure your subject access request is targeted towards it to avoid your request being disproportionate. Say exactly which types of communications you want searched, involving which people, and between which dates. It is also helpful to provide suggested search terms e.g. your first and last name or initials. Some people are surprised that even correspondence that has taken place in messaging apps such as WhatsApp can be used as evidence in a Tribunal claim.

We have provided a selection of subject access request templates from real case studies. You can use the most relevant of these as a starting point, and then edit the content to apply to your specific situation.

The subject access request must be done on an open basis, so you shouldn’t refer to any communications you have had with your employer on a “without prejudice” basis. You can however refer to the subject access request in “without prejudice” communications.

For a reminder of what “without prejudice” means read our important articles on without prejudice meetings and without prejudice letters.

Do I need a lawyer to make a subject access request?

Although making a subject access request is a straightforward process, you do need to consider how if fits in with your wider negotiating strategy. That is why it is helpful to have legal advice before making a subject access request. You lawyer can help you consider:

• Whether or not you should make the request, e.g. if your negotiations are already progressing well making a request may annoy your employer and harden their position
• What the scope of your request should be: lawyers are adept at knowing what information will help with your claim and can assist with determining the scope of your request to ensure that it is effective but not disproportionate
• How best to use the fact you have made a subject access request to maximise your settlement offer.

Top 3 Tips

1. Consider carefully whether a subject access request will help you or whether you will only annoy your employer and make a settlement agreement less likely.
2. Ensure the cope of your request is carefully targeted at the information that is mot likely to help your claim/grievance.
3. Do seek legal advice to ensure that your subject access request fits in with your wider negotiating position.

Successes we have had with using subject access requests

We have often assisted employees in making subject access requests. Some examples of the successes we have had using this tool include:

• Obtaining a ￡10,000 ex-gratia offer so an employer could avoid complying with the subject access request.
• Discovering emails between an employer and an external human resources adviser about how best to get rid of an employee.

Don’t forget we also have a range of example Subject Access Request templates available free of charge for you to use as a starting point if you decide you want to make the request yourself.

Next steps

If you want to talk to Monaco Solicitors about your work situation, including your next steps and whether you deserve a better deal, just get in touch on 020 7717 5259 or click here to request a free no obligation 15 minute consultation.