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No order for DSAR compliance where not reasonable or proportionate

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The courts will not enforce compliance with a data subject access request (also referred to as a DSAR) where compliance would not be reasonable or the search would require disproportionate effort. The motive for submitting the data subject access request will also be relevant to the court’s decision.

A mother and two children submitted a DSAR to a law firm, Taylor Wessing, which since 1987 had been the representative of a Bahamian trustee company with whom the mother was in a legal dispute. Taylor Wessing would not comply with the DSAR on the grounds that (i) many of the documents it holds are legally privileged and (ii) some of the information it holds dates back to its instruction in 1987 and has never been computerised. The claimants applied to the court in the UK to enforce compliance with the DSAR.

The High Court refused the application. To search for unprivileged documents from the duration of Taylor Wessing’s relationship with its client would be very time consuming and costly, particularly considering that Bahamian laws of privilege are complex and would require interpretation by a skilled lawyer. The court also agreed in principle that uncomputerised records were not intended to be covered by data protection provisions. In any event, the claimants’ motive for submitting the DSAR was to gain access to documents for the purposes of litigation, which is at odds with the data protection rules’ aim to allow data subjects to monitor the use and accuracy of their personal data.

This case is good news for employers because it confirms that they need not comply with every data subject access request they receive. Whilst employers will inevitably want to say that any request made by a disgruntled employee is made for the purposes of furthering a dispute and therefore does not need to be complied with, it is of course possible for an employee to be both in dispute with their employer and genuinely interested in how their personal data is being processed.

Dawson-Damer and others v Taylor Wessing LLP and others [2015] EWHC 2366 (HC)

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Mutual trust and confidence damaged by refusal of employee’s choice of companion

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An employer’s refusal to allow an employee to be accompanied to an investigation meeting by a representative from a professional defence organisation was held to be a breach of contract even though the representative was neither a Trade Union representative nor colleague.

Professor Stevens was employed by the University of Birmingham as Chair of Medicine. As required by his contract with the university, Professor Stevens was also engaged under a contract with the Heart of England NHS Foundation Trust, for whom he performed clinical duties as a consultant. Amongst Professor Stevens’ duties was to oversee 5 clinical trials, 4 of which were jointly sponsored by the university and the Trust, whilst the fifth was run solely by the university. Allegations of misconduct were made about Professor Stevens in relation to the trials; in response, the university suspended Professor Stevens and began an investigatory process into the allegations in accordance with the terms of the university employment contract. The university employment contract contained a term allowing employees to be accompanied to investigation or disciplinary hearings by another member of university staff or a representative from a trade union.

Professor Stevens asked to be accompanied to the investigatory hearing by Dr Palmer, a representative of the Medical Protection Society, which assists doctors in defending allegations of clinical misconduct. Dr Palmer had assisted Professor Stevens since the allegations were made and had expertise in clinical trials. The university refused on the grounds that Professor Stevens’ employment contract with the university only provided for staff to be accompanied to hearings by another member of university staff or a trade union representative, of which Dr Palmer was neither. Professor Stevens argued that the only people he knew at the university were his colleagues on the clinical trials, who would be witnesses and so could not accompany him, and he was not a member of a trade union, so the university’s refusal unfairly required him to attend the hearing alone.

The High Court held that the university’s refusal to allow Dr Palmer to attend the hearing was not a breach of an express term of the contract, as the university had clearly been applying an express term of the contract in requiring that companions be from one of the specified categories. However, the Court held that the contractual disciplinary procedure allows the university some discretion in the way it conducts investigation procedures and it was unfair for the investigating officer not to use that discretion to allow Dr Palmer to attend. The effect of the decision was to undermine the relationship of mutual trust and confidence between Professor Stevens and the university which was a breach of the implied term of mutual trust and confidence.

ACAS recently changed its guidance to state that employers can allow companions other than co-workers or union representatives to attend hearings.

Whilst the facts of this case are unusual, the message to employers is clear: employers should think twice before refusing to allow an employee to be accompanied by a person even if they are not an accredited union representative or colleague.

Stevens v University of Birmingham [2015] EWHC 2300 (QB)

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Constructive dismissal inapplicable to multi-party LLP agreements

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The High Court has made a significant decision which will prevent exiting members of an LLP from avoiding restrictive covenants by alleging they had resigned in response to the employer’s breach of contract.

Mr Flanagan was a member of Liontrust Investment Partners LLP. His membership was governed by a members agreement to which he was party. The law provides that where people are members of an LLP and a members agreement does not subsist default provisions under the Limited Liability Partnership Act apply. Liontrust took the decision to close the fund that Mr Flanagan was managing, thereby putting him on notice of compulsory retirement and on garden leave; however, they did not do so in accordance with the provisions of the members agreement which amongst other things required the approval of a properly constituted meeting of the Management Committee for a member to be put on garden leave. No such approval was obtained. Mr Flanagan sought to argue that the firm’s conduct amounted to a breach of the LLP Agreement sufficiently serious to demonstrate an intention by the LLP not to be bound by the members agreement, which, if the principle of repudiatory breach which applies to employment contracts applied here, would mean Mr Flanagan could say that the members agreement was terminated and instead Mr Flanagan could rely on the default legislative provisions entitling him to an equal share in the LLP’s capital, even though he was not entitled to any equity interest under the original agreement.

The High Court reached the decision that the doctrine of repudiatory breach could not apply to LLP agreements, as its application could result in members in the same LLP being bound by different arrangements with some members being bound by the members agreement whilst others would be covered by the default provisions under the LLP Act. The Court did leave open the possibility of the doctrine being applicable to LLPs with two members.

This important decision will significantly reduce the leverage available to disgruntled LLP members seeking to negotiate a favourable exit as it means there is no equivalent of constructive dismissal available to them. The fate of LLPs with only two members has yet to be decided in this respect.

Flanagan v Liontrust Investment Partners LLP and others [2015] EWHC 2171

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