Don't ask, don't get – data subject access requests and litigation
Hot on the heels of the decision in Dawson-Damer v Taylor Wessing LLP (see our 27 February newsletter for further details), the Court of Appeal has given further guidance on the proper approach to data subject access requests (DSARs) that are made in the context of (in this case employment-related) litigation. The decision in Oxford University v Deer is of particular interest because of its comments about when a court should exercise its discretion to order compliance with a DSAR.
Ms Deer was involved in long-running litigation with Oxford University concerning allegations of sex discrimination and victimisation. In the course of the litigation she made DSARs. The University initially refused to comply, on the basis that she was seeking to use the Data Protection Act to obtain disclosure for the purposes of her tribunal litigation. As the Court of Appeal made clear in the Dawson-Damer decision recently, having a "collateral purpose" of this sort in making a DSAR does not automatically mean that the request is invalid or that a Court will not order a data controller to comply.
Although the University subsequently disclosed some data to Ms Deer, she argued that it had not carried out adequate searches. Further searches were conducted by direction of the Court, involving the review of over 500,000 emails and other documents at a cost of around £120,000. This resulted in a further 33 documents being disclosed. The Court declared that these documents should have been disclosed within a reasonable period of the first DSAR, but refused to exercise its discretion to order the University to take any further steps to comply, as this would serve no useful purpose. The University appealed against the declaration and Ms Deer appealed against the decision not to require the University to take any further steps.
The Court of Appeal recognised that the fact that a DSAR is made for a collateral purpose such as to obtain documents for the purpose of litigation does not mean that a data controller can simply refuse to comply with the request. However, a data controller's duty is limited to taking reasonable and proportionate steps to identify and disclose relevant data. In addition, the exercise of the Court's discretion to order a data controller to comply with a DSAR is also subject to a general principle of proportionality. Relevant factors might include whether there is a more appropriate route to obtaining the requested information (eg disclosure), the nature and gravity of the breach, the reason why someone has made a DSAR, and whether the personal data is of real value to the data subject.
Applying these principles, the University did not have good grounds for initially refusing to comply with the DSAR. It had not carried out a reasonable and proportionate search and the Court was entitled to make a declaration. However, the University had conducted the further searches that it was ordered to carry out and the Court was also entitled to conclude that requiring further steps to be taken would serve no useful purpose. In reaching that decision it was relevant that the data subject was engaged in a "relentless pursuit" not just of personal data but of documents, and that the DSARs themselves were disproportionate.
What's the point? "Principal purpose" assessed immediately prior to transfer
Various conditions have to be satisfied before there can be a service provision change under TUPE. In particular there has to be an organised grouping of employees, which has as its "principal purpose" the carrying out of activities on behalf of the client. In Tees Esk & Wear Valleys NHS Foundation Trust v Harland, the tribunal and EAT had to examine a situation in which the "principal purpose" of an organised grouping of employees had changed over time.
From 2005 onwards an NHS Commissioning Group had responsibility for arranging full time care for a severely disabled patient. Initially a team of 27 individuals was caring for him, but the patient's condition improved over time, and by 2012 the team had reduced in size to 11 people. As the patient's condition improved further he needed fewer staff to assist him, and his team of carers also provided care for other service users in the building where the patient lived. In 2014 the patient's care contract was put out to tender, and another organisation provided his care from early 2015. The question was whether this amounted to a service provision change so that the staff caring for the patient transferred to the new provider.
The tribunal was satisfied that there was an organised grouping of employees caring for the patient and that all 11 employees were assigned to that organised grouping. The group had originally been established to provide that care. However, the tribunal found that by the time of the transfer that "principal purpose" had fallen away; at that stage the group's principal purpose was to provide care to other service users in the building, not predominantly to the individual patient. There was no service provision change.
The outgoing service provider failed in its appeal against that decision. The EAT found that the tribunal was correct to concentrate on the position immediately before the transfer, as required under TUPE. By then, the patient needed approximately 125 hours of care a week, while the employees in question worked for a total of 375 hours. This supported the tribunal's analysis that although the team of employees had originally been put together to support the patient's needs, its main purpose had changed over time. The purpose of caring for the patient had diminished so that it was no longer the dominant purpose.
One thing leads to another – redundancy, indirect sex and part time worker discrimination
The employer in Fidessa PLC v Lancaster supplied software to financial services companies and there were specific tasks that had to be done after the end of trading. On her return from maternity leave, the claimant agreed with her employer that she could do the preparatory work before 5pm, then leave work to collect her daughter from nursery, and finish off the tasks remotely from home. However, when her normal manager was on annual leave, another manager (who had sworn when he found out that the claimant was pregnant for a second time) reneged on the arrangement. The claimant was subsequently made redundant, and although she could have applied for another position, this would have required her to work in the office after 5pm, which she could not do because of her child care arrangements. She brought complaints of direct and indirect sex discrimination and less favourable treatment because of her part-time status.
The EAT upheld the tribunal's finding of indirect sex discrimination and unfair dismissal and the complaint of part-time worker discrimination. The tribunal found that the requirement to work on site after 5pm put the claimant at a disadvantage and that women as a group were more likely to have to collect children from nursery at the end of the day. The fact that the claimant was also concerned about career progression in the new role did not take away from the tribunal's clear finding that it was the PCP of working after 5pm in the office that caused the claimant not to apply for it. As such, her dismissal was unfair and tainted by indirect sex discrimination. (The EAT overturned the tribunal's finding of direct sex discrimination on a technicality and returned the claim to the tribunal for further consideration.)
One other point of interest in the case was the claimant's reliance on her previous full-time position as a comparator in her part-time discrimination claim. In contrast with other types of discrimination, part-time discrimination claimants have to point to an actual, not just a hypothetical comparator. However, if a worker returns to work from maternity leave within 12 months on a part-time basis, she can use her previous full-time position as the comparator. The claimant had returned to work a few days before the end of the 12 month period but had then taken accrued annual leave. The EAT rejected the employer's contention that she had failed to return within the 12 month period – returning from maternity leave was returning to work, even if the worker immediately took annual leave.
