Updated April 2019.
Employees have the right to see their personnel files, whatever the motive, explains Philip Sayers, Employment lawyer at Coodes Solicitors.
Most employers should be aware that their staff can ask to see their personnel files and any data held on them, including disciplinary records and emails. An employee’s ability to see their personnel file was strengthened by Court decisions in 2017. The introduction of the GDPR regulations in May 2018 has potentially further strengthened an employee’s ability to request sight of all the personal data that their employer holds.
Until recently, there was some confusion over whether or not employees had the right to see their personnel files. A landmark case in 2017, involving an eight-year dispute between a member of staff and Oxford University, provided some much-needed clarity.
Dr Deer had asked for copies of data the University held on her, both in electronic and paper files. Oxford University had argued that it did not need to disclose the data because the request was purely to support her ongoing grievance. Their argument was in line with a previous ruling – the high profile Durant case – which said an employer might not need to comply where the purpose is a fishing expedition with litigation in mind. In the instance of Dr Deer though, the Court of Appeal held that an employee generally has the right to see any personal data held by their employer, whatever the motive. That was a decision taken in respect of the Data Protection Act 1998. Under that legislation an employer could seek to limit the steps it needed to take in searching for personal data by citing that taking further steps would involve disproportionate effort.
In other words, while Dr Deer’s case means that an employer is unable to refuse to comply with a request just because the employee is making it with an eye on litigation they could still seek to put limits on the steps they have to undertake to comply with the request. The provisions about disproportionate effort are not replicated in the GDPR regulations. Therefore, it is currently uncertain whether an employer has to search for personal data as thoroughly as possible or whether they can limit their search for that data.
A ‘subject access request’, sometimes known as a SAR, is when an employee asks to see any of his or her records, held by the employer. Data includes not only paper personnel files, but communications relating to the employee, including emails.
An employee will often ask to see his or her personnel files when they are involved with a dispute with their employer. They will sometimes go beyond that and ask to see all the data their employer holds on them. This can be an extremely time consuming and onerous task for an employer. That is because they will need to not only locate thousands of documents but will also need to read them all before disclosing to the employee so as to ensure they aren’t breaching someone else’s data rights in the process.
The introduction of the General Data Protection Regulation (GDPR) has made more people aware of their rights in accessing data containing personal information. However, the basic right to see personal data already existed under the existing laws and GDPR largely just just refines how that right is exercised in practice.
The short answer is ‘yes’. You have a right to make a SAR to your employer, asking to see your personnel files, at any time.
Your employer has the right to ask why you want to see your files, but must then provide all your records to you. If the request goes further than requesting sight of the personnel file and involves having sight of all personal data, your employer will generally still have to comply but may, in some limited circumstances, be able to justify limiting the extent of what they provide.
The legal position is clear: if an employer is involved in a dispute with an employee, they cannot refuse a request to see personal data simply because the request is so as to obtain ammunition for litigation. If a member of staff wants to see his or her records the employer can ask why, but whatever the answer, must comply. It may be possible to limit the extent of that compliance but that is uncertain at this moment and will not be relevant to the vast majority of DSARs.
For more information on this or any Employment enquiries contact Philip Sayers, Employment and HR team, Coodes Solicitors on 01872 246200 or firstname.lastname@example.org