[reposted from my LinkedIn account]
Jones v Secretary of State for Health And Social Care [2024] EWCA Civ 1568
A question for data protection advisers. If you are asked by an unsuccessful candidate for a job what the age, gender and ethnic origin of the successful candidate was, do you disclose? (And what is your Article 6 basis and Article 9 UK GDPR condition for doing so?)
These questions are prompted by an interesting employment case in the Court of Appeal.
The appellant, who self-describes as black Caribbean, interviewed for a business development role at Public Health England (PHE) on 28 March 2019 but was not told, despite chasing, until 3 July 2019 that he had been unsuccessful. This was already outside the primary three month limitation period for bringing a claim in the employment tribunal (ET).
He then asked PHE for “age, gender and ethnic origin” of the successful candidate, and explained he needed to information to decide whether or not to make a claim in the ET.
It is not entirely clear what then happened: it’s suggested that PHE initially refused, but told the claimant he could make an FOI request, and there is also a suggestion that he was told that if he provided proof of his identity they would provide the information. In any event, he was not informed until much later in the proceedings that the successful candidate was white British.
His ET claim for discrimination was, therefore, submitted out of time. The ET can only extend the time for such a claim where it is “just and equitable” to do so, and, here, the ET held that it was not: he put off making his claim “because he was on an information gathering exercise. He was looking for the evidence to bolster his claim…Despite the Claimant’s criticisms, the respondent did in fact provide him with information and an explanation of its actions quite early on in the chronology. It gave him enough information to know that there was a claim for him to make if he wanted to present it to the Tribunal”. And, in any case, the ET dismissed the claim on its merits.
On appeal to the Employment Appeal Tribunal (EAT) the claimant submitted that it had been perverse of the ET to refuse to exercise its discretion to extend the time for making the application, but the EAT held that the ET had made no error of law in that regard.
The Court of Appeal felt differently; it was wrong for the ET to have held that the claimant had had, much earlier, the “raw materials” on which to formulate his claim, and it although it was correct that he was looking for information to bolster his claim, this ought not to have been held against him. “The information he was seeking about the ethnicity of the successful candidate was an essential part of his claim”.
Accordingly, the ET’s decision not to extend time under the “just and equitable” test was perverse, and the order of the EAT to uphold that decision was set aside, and the case on merits was remitted to the EAT.
And I guess my answer to my own questions at the start of this post would be: one or both of Articles 6(1)(c) and 6(1)(f), and Article 9(2)(f). But in all those cases, it’s going to be difficult for the controller to make the appropriate call on whether the request for information means that it’s necessary to make the disclosure, or whether it’s just a frivolous or aimless request.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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