Refusal to respond to data subject access request contributed to unfair dismissal

In McWilliams v Citibank NA, the Employment Tribunal found that an employer’s refusal to respond to a foreign exchange trader’s subject access request materially affected her ability to defend her actions, after she was suspended for breaching client confidentiality.  The tribunal held that the dismissal was unfair.

The claimant was employed at Citibank’s London office and she used Bloomberg online chat rooms to communicate with foreign exchange traders at other banks. In view of concerns about possible Libor manipulation, Citibank decided to prohibit such chats. Meanwhile, the Financial Conduct Authority (FCA) announced it was to investigate the manipulation of exchange rates by traders and sharing confidential information in online chat rooms.

The claimant was suspended pending a disciplinary hearing and her chats were investigated. So that she could defend herself in the disciplinary process, she made a subject access request (SAR) under the Data Protection Act 1998, requesting all personal data about her held by Citibank. Citibank refused to respond to the initial SAR on the grounds that they felt it was too wide in scope. She narrowed the scope but they did not respond to that because they believed they had given her what she needed.

The disciplinary hearing took place at a time when the SAR was still in dispute (the Information Commissioner’s Office was involved by that point) and the FCA investigation was ongoing. The claimant was dismissed and she brought claims for unfair dismissal and wrongful dismissal.

The Employment Tribunal (Tribunal) found that Citibank’s conduct in connection with the SAR was unfair and materially affected the claimant’s ability to set out her response to the disciplinary allegations. Due to her suspension, the claimant had no access to documents or contact with colleagues and she was therefore reliant on Citibank to carry out a reasonable and diligent investigation. The Tribunal held that the dismissal was unfair.

The Tribunal acknowledged that employee SARs in disciplinary proceedings may sometimes be little more than a fishing exercise, but it held that was not the case here. Even if the claimant’s initial SAR was unduly excessive in scope, Citibank did not attempt to supply documents based on a more limited or proportionate search before the disciplinary hearing.

In conflict with other case law, the Tribunal took the view that Citibank should have responded to the claimant’s SAR, notwithstanding that its purpose was to obtain information relevant to the disciplinary proceedings and might, therefore, have been regarded as an abuse of process. The Tribunal’s view in this case does, however, accord with the Information Commissioner’s guidance, which provides that the fact that an employer believes that a SAR is made for an improper purpose does not relieve it of its obligation to respond.

Although the Tribunal’s decision is not binding on other tribunals, employers should think carefully when considering whether to refuse an employee’s SAR on the basis that it is not sufficiently limited in scope, would be too onerous to process or has been made with the sole purpose of eliciting information to support the employee’s position in light of potential litigation.

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