Understanding Employer Obligations: Handling Notes and Witness Statements in Response to GDPR Request
We hope this blog post will help answer the question for you!
In the workplace, transparency and accountability are key to maintaining a healthy work environment. Employees are entitled to certain rights, and this includes the right to access information about them that is held by their employer.
This can include documents such as notes and witness statements produced during grievance or disciplinary procedures. However, employers must balance this right with their obligation to protect the privacy of third parties involved.
In this blog post, we will explore the question of whether an employer must disclose such documents when an employee requests them and how the UK General Data Protection Regulation (GDPR) affects this process.
The Right to Access Information
Under the UK GDPR, which was retained from the EU Regulation 2016/679 EU, employees have the right to request access to information about them that is held on file, whether in manual or electronic format. This right extends to documents related to grievance or disciplinary procedures. For instance, an employee who has raised a grievance and is dissatisfied with the outcome may request copies of the written evidence used to make the decision, including statements obtained from witnesses. Similarly, an employee against whom a grievance has been made may request evidence related to the complaint.
Balancing Privacy Concerns
While employees have the right to access this information, employers must consider the privacy rights of third parties involved in the process. The employer can refuse to disclose a document if its release would also reveal information about a third party who can be identified from the information. However, there are exceptions to this rule:
- Blacking out identifying information: This can include the witness’s name and any other data that could identify them.
- Editing the statement: Redacting portions of the statement to conceal the identity of the witness.
- Summarising information: In cases involving multiple witness statements, preparing a summary of the information contained in the statements.
The Balancing Act
Ultimately, employers must make a reasoned decision on whether it is reasonable, in the given circumstances, to disclose a witness statement or any other document. This decision involves balancing the witness’s right to privacy against the employee’s right to know what information is held about them and its source.
Disciplinary Hearings and Evidence
When a disciplinary investigation leads to a decision to proceed to a disciplinary hearing, the employer must provide the employee with copies of any witness statements and other written evidence that will be referred to in the hearing. This is essential to ensure that the employee knows the case against them and has the opportunity to challenge it. Evidence should only be anonymised or withheld if there is a compelling reason to do so.
Acas Code of Practice
The Acas code of practice on disciplinary and grievance procedures, which is considered in relevant tribunal proceedings, provides guidance on this matter. It suggests that it is typically appropriate to provide the employee with copies of any written evidence when notifying them of the disciplinary hearing. However, it also acknowledges that there may be circumstances, such as protecting a witness, where withholding information may be justified.
Employees have the right to access information held by their employers, including documents related to grievance and disciplinary procedures. However, employers must carefully balance this right with the privacy rights of third parties. Anonymisation and redaction are useful tools in protecting the privacy of those involved while ensuring transparency in the process.
Need HR advice?
With Subject Access Requests on the rise, we always recommend that employers obtain the right advice to ensure the request is handled correctly and in line with employment law. If you need expert advice, call Natalie or Faye on 01327 640070 or email hello@reboxhr.co.uk.
Why not take a look at our HR packages? We offer retained and pay as you go options that are perfectly tailored to the needs of small businesses!
- Third-party consent: If the third party consents to the disclosure, the employer can provide the document.
- Reasonable circumstances: If it is reasonable in all the circumstances to comply with the request without third-party consent, the employer can proceed.
