Failing to comply with a subject access request may impact the fairness of a dismissal

In the recent employment tribunal case of McWilliams v Citibank, the Claimant had been suspended following allegations that she had breached client confidentiality. The Claimant subsequently submitted an extensive subject access request (SAR) to her employer in respect of her disciplinary proceedings, which was refused on the grounds of proportionality. The SAR’s scope was consequently reduced but was again refused.

The Claimant was dismissed for gross misconduct.  In finding the dismissal to be unfair, the employment tribunal commented that the Claimant (being on suspension) had no access to the documents she needed to prepare for the disciplinary proceedings. The employment tribunal considered it unreasonable that the Claimant had only been able to rely on the employer’s investigation.

Although only a non-binding decision from a tribunal, the message for employers is clear.  In addition to the risk of a complaint to the ICO (which in this case, is on-going) an employer who does not respond to a SAR may be faced with an additional hurdle to overcome in the form of procedural unfairness.