As an employer, there are many occasions when it’s advisable to keep written notes, either by hand in a notebook, or in a follow up email.  Written notes can avoid doubt about what was agreed at the time and provide easy reference for any subsequent conversations or actions.

What are subject access requests?

In terms of what you decide to commit to paper there are some legal pitfalls.  Under the Data Protection Act 2018 any personal data (“information relating to an identified person”) that you hold about an individual (“a data subject”) can be requested by that individual.  A request can be made by the data subject (i.e. the employee/person the information is about) and you as their employer (and as the data holder/processor) must provide them with copies of every piece of data that they are mentioned in.

What is included in a subject access request?

The type of information that you are legally obliged to share with the data subject includes: all formal documents, such as letters and contracts, but also emails, handwritten notes and any other electronic messages including text and WhatsApp messages that identify the individual for example by name(s) or initials.

Are subject access requests free?

The data subject can make the subject access request free of charge. In terms of how long it takes to handle a subject access request, the data holder (in this case you as the employer) is given a one-month time frame in which to respond.  If you receive such a request, you will need to submit everything that refers to the subject.  Yes, everything!  To protect the personal data of any other individuals, you will need to redact any names or other identifying information.

When deciding what to put in writing in the future, you should consider how the information would be perceived by the individual, whether you would be comfortable to put your name to the comments you have made and what the individual could do with that information.

In summary:

  • only keep notes and records that are necessary and for the required amount of time;
  • make sure that the paperwork which you should keep on file is properly filed (e.g. contract of employment, letters recording any changes to terms and conditions, right to work documents, etc).

A cautionary tale…

An employee had been promised a promotion following feedback on her excellent performance.  The department manager had a discussion with the employee and all was agreed.  All that was left was for the transfer to be confirmed in writing by HR.  A few days later, the employee realised she was pregnant and she notified her manager accordingly.  As she still hadn’t received confirmation of her promotion, she spoke to her manager and he said the promotion might not happen and reminded her that it had never been confirmed. 

The employee was confident that she hadn’t misunderstood the conversations that she’d previously had with her manager and she was confused about why she wasn’t getting the promotion that she had been promised verbally.

The employee decided to make an SAR and as she read through all the information provided to her a particular email, specifically the timing of it, stood out.  It was from her manager to HR asking them not to confirm the employee’s promotion in writing and that it probably wasn’t going to happen now.

The email was sent six minutes after the employee had told her manager she was pregnant.

The employee raised a grievance that she had been discriminated against because she was pregnant.  The employer, not wanting to be taken to an employment tribunal, gave the employee a settlement agreement and a substantial ex-gratia payment as compensation.

Human Resources for SMEs