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A welcome recent decision for employers on responses to Data Subject Access Requests
Decision: The recent case of Dawson-Damer
v Taylor Wessing & Others [2015] EWHC2366
provides useful guidance on responding to
Data Subject Access Requests (“SARs”) and
particularly the use of “disproportionate
effort” as a reason not to respond. In this
case, the SAR was against a firm of solicitors,
Taylor Wessing, who refused to provide more
than limited information in response claiming
that most of the personal data sought was subject to legal professional
privilege and therefore exempt from disclosure. (paragraph 10, schedule 7 of
the Data Protection Act 1998, “DPA”) and that, in any event, establishing
whether data was privileged would involve disproportionate effort on Taylor
Wessing’s part. Section 8(2) of the DPA permits recipients of SARs not to
provide copies of the requested information if it would involve disproportion-
ate effort.
The High Court held that to establish whether the personal data (which went
back 30 years) was covered by legal professional privilege would require
skilled lawyers to review the information. Taylor Wessing was therefore not
required to provide the information due to the disproportionate effort it
would have required on the part of Taylor Wessing. The High Court does have
a discretion to order compliance with a SAR. However, here the Court said (on
an obiter basis) that the only reason the Claimants had made the SAR request
was to get information for them to use in other court proceedings and it
would not order compliance with the SAR for this.
Impact: This case provides helpful guidance from the High Court as to use of
disproportionate effort. It also reinforces the finding in the Durant Case
(Durant v Financial Services Authority [2003] EWCA Civ 1746), that the
purpose of a SAR is for somebody to check that there has been no infringe-
ment of their privacy in relation to their personal data. It is not to assist them
in pursuing litigation against third parties. However, bear in mind that this is a
High Court decision and not one which has been supported by the
Information Commissioner who believes that such decisions do not impact on
the legal duties of employers (and other entities) to comply with a SAR.
UK Employment Round-Up
October 2015
The View From Mayer Brown
Episode 79
Nick’s first one extends associative
discrimination and the second case
determines that a limited liability company
can sue for direct discrimination. The last
case provides guidance on the various EU
rules on jurisdiction where an employer
sues an employee.
Episode 80
Nick looks at a Court of Appeal decision on
whether the Protection from Harassment
Act can cover individuals who are directly
affected by harassment but are not the
intended target. A second case considers
whether employees temporarily laid off
transfer to a new employer under TUPE.
The third case considers what is required
for a whistleblower to show the disclosure
is “in the public interest”.
Our monthly review of key cases and new law affecting employers
UK Employment Law: for HR and
in-house lawyers
Join the discussion on LinkedIn
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source of up-to-date employment law
knowledge. We’d like to encourage you
to post your own relevant discussions
and contribute your own comments on
the discussion page.
Click here to view all
episodes and platforms.
2 UK Employment Round-Up
Does the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) also apply to foreign public bodies?
Decision: The long awaited Supreme Court decision in the USA v Nolan case
has now arrived. It confirms that TULRCA can apply to the actions of a foreign
state in connection with their UK undertakings. The US Government had
argued that it was not bound by TULRCA as TULRCA was the domestic law
implementing a European Directive which specifically excludes those
employed by public administrative bodies or establishments governed by
public law from its application. The Supreme Court did not agree and said that
as the legislation only covered redundancies at the institutions in England,
Wales and Scotland, it could not be argued that the UK was seeking to legislate
extra territorially.
The case has now been remitted back to the Court of Appeal who will decide
when the duty to consult arises Watch this space.
A step further for associative discrimination
Decision: In Thompson v The London Central Bus Company, Mr Thompson
brought a claim for victimisation when he was dismissed for lending his high
visibility vest to another employee. The Claimant said that he had only been
subjected to disciplinary proceedings because, in the mind of his employer, he
had been associated with the protected acts of some other employees who
had alleged that the employer was in breach of the Equality Act 2010. At a
preliminary hearing, the Tribunal had said that the wording in the Equality Act
had to be read as saying that victimisation occurs where a person is subjected
to a detriment” “because of ” a protected act. That act could be another
person’s protected act, not that of the Claimant. The EAT held that the
evidence of the link between the Claimant and the person who had carried out
the protected act would be relevant in determining whether the Claimant was
subjected to a detriment because of a protected act.
Impact:This could significantly widen the scope of victimisation law if
Claimants allege victimisation because of the protected acts of others.
However, it will remain necessary for a Claimant to show a causal link between
the alleged action and the protected act. Note the similarity between this and
the whistle blowing legislation. Claimants may prefer a victimisation route in
appropriate cases as they will not be required to show that the protected
disclosure was in the public interest.
30 seconds with…
Miriam Bruce
Senior Associate
T: +44 20 3130 3695
What job would you be doing if you
weren't a lawyer?
That's an easy one – running a beach bar
in an exotic location. Somehow, with
blue skies, golden sands and copious
supplies of cocktails, those unsociable
hours would not seem so bad and a lot
better than being in an office!
What is the best holiday/trip you have
been on?
Three weeks travelling around Australia.
I met my favourite animal – the koala, but
the high point was definitely visiting the
"Neighbours" set. Sadly they were not
filming that day as I was hoping to be able
to do a cameo part. Unfortunately I was
not able to bring the koalas home in my
suitcase and had to leave them at
Melbourne airport.
What talent/skill do you have that not
many people know about?
Definitely my skill in karaoke (well I
believe it's a skill – those hearing it may
have a different opinion!). I prefer not to
do duets as I believe that the stage
should be all mine and my expertise lies
in covering well known hits of the 90's
and 00s'.
mayer brown 3
LLP’s as corporate bodies can also claim protection against discrimination under the Equality Act 2010 (the “Act”).
Decision: In EAD Solicitors LLP & Others v Abrams UK EAT/0054/15 it was
held that not only individuals could claim protection under the Act. The Act
prevents discrimination by one person against another person. However, a
person is defined (in the Interpretation Act 1978) as including a limited
company unless the contrary intention is shown in statute. In relation to the
claim in question no contrary intention has been shown in this part of the
Equality Act (cf s27 of the Equality Act which refers to the victim being an
individual). The situation is further supported in relation to LLPs as the Act
contains a provision that an LLP must not discriminate against a member (s45
of the Act) and a member of an LLP is often a corporate member.
Impact: This could have a considerable impact on discrimination law across
the spectrum, not just in relation to the employment relationship.
Does your company regularly transfer data between the UK and the US?
A recent decision by the Court of Justice of the European Union is likely to
have a significant commercial and political impact on the flow of data between
the EU and the US. If your company regularly transfers data between the UK
or other parts of the EU and the US , please contact us for a guidance note in
this area.
Please speak to your usual contact in the Employment Group if you have any
questions on any of the issues in this update, or contact either of the authors below.
Stefan Martin Ann Robson
Partner, London Senior Associate, London
E: [email protected] E: [email protected]
T: +44 20 3130 3308 T: +44 20 3130 3345
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