Issue for Independent HR consultants to be aware of

Any HR professional will be familiar with the Data Protection Act and the
ability of an individual to make a Subject Access Request under the Act
which may (or may not) be used by people on occasion to conduct a ‘fishing
expedition’ to support a grievance.

When I provide advice to my clients, the contents of emails that I will be
writing to clients will be subject to legal professional privilege, which
excludes their contents from the requirement to disclose the personal data
they might contain to an individual upon request, your communications with
your clients will be different.

Indeed, on occasion when I have been acting for individuals I have used this
route myself to try and obtain, for example, email correspondence between an
HR consultant and their employer client that might reveal, for example,
pre-judgement in a disciplinary process or useful evidence in a grievance.

You need to be very careful, therefore, to plan how you give advice on
occasions.  Sometimes it might need to be face to face meetings with your
client rather than by email but even if you keep notes of the minutes with
your clients, those notes themselves may become capable of disclosure under
a Subject Access Request.

There are some exceptions under the Data Protection Act for information that
is not disclosable as part of a Subject Access Request and these include
management forecasts and planning (paragraph 5 of Schedule 7) and
negotiations (paragraph 7 of Schedule 7).  Thus, for example, the notes of a
redundancy planning meeting could become exempt if to disclose them would
prejudice the business or organisation’s activity and notes which relate to
your client’s intentions regarding a negotiation, for example, a protected
conversation and discussions about a Settlement Agreement would also be
exempt to the extent to which disclosure would prejudice those negotiations.
However, if those negotiations have finished, arguably that exemption no
longer applies.  I would, therefore, be very careful about committing to
writing, for example, a plan to dismiss an employee for gross misconduct
following a disciplinary hearing – I would always make it clear in your
correspondence with clients that there are a range of possible outcomes
depending on the decision that they ultimately make at the hearing when it
happens.

If you do have any questions please email me