Pavel is bringing an equality claim through his union against his employer on the grounds that he is not getting the same terms and conditions of employment as his Irish colleagues. Pavel and his union representative are building a case, but they would like to have access to his employment file which is in the possession of the employer. What are Pavel’s rights on access to his personal data and how does the Data Protection Act of 1988 – 2018 assist him?
What is personal data?
Personal data is any information that relates to an identifiable, living individual. It includes any data held in paper files, on computer, on CCTV records or even on sound files.
What is data protection and how do you access your data held on file by your employer?
Your employer has a duty to keep your personal details private and safe. You have a right to obtain a copy of any information relating to you that is stored or held on file by your employer. While the new legislation allows for verbal requests of personal data, it is always advisable to make a clear written request to your employer. A sample request would be as follows:
“Dear X, I wish to make an access request under the Data Protection Acts 1988 – 2018 for a copy of all of my personal data that you have stored in any format, but specifically in relation to…………”
You should always send in as much information as possible to assist the company to locate the data that you are interested in obtaining. Under the new legislation, there is no fee for a Data Access Request and your employer must respond with the relevant information within one month. However, if the request in complex in terms of searching for the data or the volume of data involved, the employer can request an extension of a further two months.
Can your employer lawfully withhold certain information?
Yes, in certain circumstances. The legislation only provides a right for workers to avail of their personal data. Therefore, any data that is not considered personal data can be withheld or redacted. Similarly, any reference to another person within the documentation might also be redacted as this is somebody else’s personal data. Other circumstances might include where the data is protected by legal privilege because it is correspondence between your employer and their legal advisors and/ or where a person has provided has referred to you in their correspondence, but the opinion was provided in confidence. However, when withholding personal data your employer must explain to you in writing what data they are withholding and why. If you are concerned about the validity of your employer’s response, you can refer the matter to the Data Protection Commission to review.
What if your employer refuses to respond to your access request?
If the company does not comply with a valid access request, then you can refer the matter to the Data Protection Commissioner. Before doing so the Data Protection Commissioner recommends that you contact the company to establish the circumstances and to indicate your intention to refer the matter. If there is no response, or maybe an unsatisfactory response, the Commissioner will investigate the matter with the view to ensuring your rights are upheld. The Commissioner does not have the power to award compensation but can give a declaration that rights were breached.
How do you make a complaint to the Data Protection Commissioner?
A complaint also be submitted online – https://forms.dataprotection.ie/contact.
The communication should include the following
- Name of the company / employer you are complaining about;
- Explain the request you have submitted and the response you have received to your request;
- Explain the further steps you have taken to have your request dealt with;
- Explain the further responses you have received, if any; and
- Provide copies of any letters or emails exchanged between you and your employer.
The Commissioner may investigate your complaint and seek to find a resolution to the matter. If efforts at resolution fail, and the Commissioner agrees with your complaint, they will try to make sure that the company complies with the law by sending out the requested data.
“The above information is just a broad outline of the law and should not be used as a legal guide in this complex area. SIPTU provides a specialist individual representation and advice service for members who find themselves in trouble with their employer. The Workers’ Rights Centre can be contacted at 1890 747 881 or through the designated union official.”