DSARs AS A FISHING EXPEDITION - DO THEY WORK?

It is not uncommon for an employee to submit a data subject access request (DSAR) shortly before lodging a grievance, commencing ACAS Early Conciliation or issuing Employment Tribunal proceedings. Frequently, the underlying belief is that a DSAR will provide access to all documents relating to their employment and potentially uncover evidence for a future claim.

While there is often some overlap between information disclosed under a DSAR and documents disclosed during litigation, the reality is that the two processes have very different objectives and scope.

A DSAR is a data protection right. Its purpose is to allow an individual to obtain information about how their personal data is being processed and to receive a copy of that personal data. It is not intended to provide general access to wider information (including an employer's records, investigations, decision-making materials or correspondence).

By contrast, disclosure in Employment Tribunal proceedings is a litigation exercise. The purpose is to ensure that parties have access to all relevant documents that may assist or undermine either side's case so that the Tribunal can determine the issues fairly.

This distinction is often the reason why individuals who use DSARs as a form of pre-action evidence gathering can be disappointed by the outcome.

The search for personal data excludes many relevant documents

When responding to a DSAR, employers are only required to provide the requester's personal data. The fact that personal data appears within a wider document does not automatically mean the entire document must be disclosed. In many cases, employers can extract the relevant personal data and provide it without producing the underlying document in full.

In contrast, Employment Tribunal disclosure generally focuses on the document itself rather than whether it contains personal data. If a document is relevant to the issues in dispute, it may need to be disclosed even where it contains little or no personal data relating to the claimant.

Protecting third parties

The treatment of third-party information also differs significantly between the two regimes.

Under data protection legislation, employers must consider the rights and freedoms of other individuals whose personal data appears within the material. This frequently results in redactions, anonymisation or, in some cases, withholding information altogether where disclosure would unfairly affect the privacy rights of colleagues, managers or witnesses.

This is particularly relevant in workplace investigations, disciplinary proceedings and grievance processes, where documents often contain information about multiple individuals. Employees are therefore unlikely to receive unrestricted access to witness statements, management deliberations or complaints involving other members of staff through a DSAR.

By comparison, the Employment Tribunal disclosure is generally more expansive. Whilst confidentiality concerns remain relevant and applications can be made for appropriate protections, the focus is on the relevance of the document to the proceedings rather than whether it contains third-party personal data.

Exemptions

A further reason why DSARs do not typically produce the same material as litigation disclosure is the availability of exemptions.

For example, information protected by legal professional privilege can be withheld from disclosure in response to a DSAR. This may include communications with legal advisers, legal advice provided to the employer, and documents created for the dominant purpose of contemplated or ongoing litigation.

Other exemptions may also apply depending on the circumstances, including information relating to the management forecasting or planning of the business, confidential references and certain negotiation-related communications.

In Employment Tribunal proceedings, privileged documents remain protected, but many other categories of documents that may be exempt from DSAR disclosure could nevertheless be relevant and disclosable within the litigation process.

The key takeaway for employers is that a DSAR and Tribunal disclosure are not interchangeable. Although both exercises may involve reviewing the same underlying records, they are governed by different legal frameworks, serve different purposes and are subject to different restrictions.

Understanding those differences is important when managing employee expectations. A DSAR should not be viewed as a mechanism for obtaining every document held by an employer, and organisations should be prepared to explain why the material disclosed under a DSAR may differ significantly from what could later be produced in Employment Tribunal proceedings.

Need support?

We advise employers on all aspects of DSAR compliance and employment litigation strategy, including responding to high-volume or pre-claim requests. If you would like support with a complex request or ongoing dispute, please get in touch.