Category Archives: employment

April 14, 2025 · 8:51 am

Personal use of work devices – an Irish judgment

A frequent headache for data protection practitioners and lawyers is how to separate (conceptually and actually) professional and personal information on work devices and accounts. It is a rare employer (and an even rarer employee) who doesn’t encounter a mix of the two categories.

But, if I use, say, my work phone to send a couple of text messages (as I did on Saturday after the stupid SIM in my personal phone decided to stop working), who is the controller of the personal data involved in that activity? I’d be minded to say that I am, (and that my employer becomes, at most, a processor).

That is also the view taken by the High Court in Ireland, in an interesting recent judgment.

The applicant was an employee of the Health Service Executive (HSE), and did not, in this case, have authority or permission to use his work phone for personal use. He nonetheless did so, and then claimed that a major data breach in 2021 at the HSE led to his personal email account and a cryptocurrency account being hacked, with a resultant loss of €1400. He complained to the Irish Data Protection Commissioner, who said that as his personal use was not authorised, the HSE was not the controller in respect of the personal data at issue.

The applicant sought judicial review of the DPC decision. This of course meant the application would only succeed if it met the high bar of showing that the DPC had acted unlawfully or irrationally. That bar was not met, with the judge holding that:

The DPC did not purport to adopt an unorthodox interpretation of the definition of data controller. Instead, against the backdrop of the factual matrix before it, it found that the HSE had not “determined the purposes and means 28of the processing” of the data relating to the Gmail, Yahoo, Fitbit and Binance accounts accessed by the applicant on his work phone. That finding appears to me to be self-evident, where that use of the phone clearly was not authorised by the HSE.

I think that has to be correct. But I’m not sure I quite accept the full premise, because I think that even if the HSE had authorised personal use, the legal position would be the same (although possibly not quite as unequivocally so).

In genuinely interested in others’ thoughts though.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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December 14, 2024 · 9:52 am

Disclosing details of successful candidates from jobs

[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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November 1, 2024 · 5:44 am

Dismissed FE teacher’s data protection, MOPI, HRA claims fail

[reposted from LinkedIn]

Claims in misuse of private information, data protection and for breach of the Human Rights Act, by a dismissed further education teacher against Tameside College and three employees are struck out/subject to summary judgment for the defendant.

The claimant was initially suspended after evidence came to light that he had been dismissed from previous roles. The College’s investigation involved the sending of reference requests to two previous employers, and was also informed by disclosures of Facebook and WhatsApp messages which revealed the teacher had, contrary to instruction, communicated with students on social media whilst suspended, and “sent a threatening message to a WhatsApp Group chat comprising members of staff”.

The deputy master found that in relation to the misuse of private information claims, although the claimant had a reasonable expectation of privacy in the social media messages, “those expectations were greatly outweighed by the need to investigate those messages for the purposes of the disciplinary process”. These were subject to summary judgment for the defendant.

The data protection and human rights claims against individual employees were bound to fail, as they were neither data controllers nor public authorities.

As to the data protection claim against the college, a previous determination by the ICO that the sending of the reference requests was not fair and transparent, because it was contrary to the claimant’s expectations, was wrong: it was “plain that it ought to have been well within the Claimant’s reasonable expectation that, in order to investigate whether he had failed to disclose the fact of his dismissal from those two institutions, each would be contacted and asked about it.”

The college’s processing was lawful under Article 6(1)(b) and (c) of the UK GDPR: “The processing was necessary for the purposes of the contract of employment between the [college] and the Claimant and for the performance of the [college’s] obligations to its other staff, and to safeguard and promote the welfare of its students.” The various safeguarding legal duties and obligations on the college established a clear legal basis for the processing.

Similarly, the human rights claims against the college, which included complaints of unlawful monitoring and surveillance, were bound to fail: “There is no real prospect of establishing a breach of Article 8 for the same reasons that there is no real prospect of establishing misuse of private information. The alleged breaches of Articles 10 and 11 appear to relate to the College’s instructions to the Claimant not to communicate with other staff except with permission. The instruction was plainly a reasonable one made for a legitimate purpose.”

Accordingly, the data protection and Human Rights Act claims were struck out.

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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December 18, 2022 · 8:58 am

Data protection misunderstandings in court

There is something that distinguishes those who have practised data protection law for more than five years and those who have come to it more recently. The former are in possession of a secret. It is this: GDPR did not change the fundamentals of data protection.

Look at the keystones of the law – the data protection principles in Schedule One of the Data Protection Act of 1998 (the prior law) and in Article 5 UK GDPR (the current). They are effectively identical. And in fact, they have barely changed from the principles in the 1984 Data Protection Act, and those in the Council of Europe Data Protection Convention 108 of 1981.

Yet even in the courts one still sees from time to time the misconception that the GDPR rights and obligations were something fundamentally new.

An example is a recent case in the Employment Appeal Tribunal. The details of the case are not important for this post, but what is relevant is that the claimant employee argued that information about his previous employment history at the respondent employer (from 2008-2011) should not have been allowed in evidence. One argument in support of this was that the lengthy retention of this information was in breach of the employer’s data protection obligations (and the claimant had received correspondence from the Information Commissioner’s Office broadly agreeing with this).

But in response to this argument the respondent employer asserted that

Prior to [GDPR coming into effect on 25 May 2018] there was no “right to erase“. Accordingly, the period during which the respondent should arguably have taken steps to delete data was around nine months from this point until 28 February 2019.

This fails to recognise that, even if there was no express right to erasure prior to GDPR (n.b. there was certainly an implied right, as the European Court of Justice found in Google Spain) there was certainly an obligation on a data controller employer not to retain personal data for longer than was necessary (see paragraph 5 Schedule One to the 1998 Act).

The judge, however, accepted the respondent’s argument (although in all fairness to her she does point out that neither party took her to the legislation or the case law):

I accept that the ICO’s reference to retention being likely to breach data protection requirements, was (at its highest) concerned with the nine month period between the GDPR coming into effect and the claimant indicating an intention to commence litigation

That is not what the the quoted correspondence (at paragraph 17) from the ICO said, and it is not a correct statement of the law. If the period of retention of the data was excessive, there is no reason to say it was not in contravention of the prior law, as well as GDPR.

Ultimately, it is doubtful that this would have made much difference. As often in such proceedings, the relevance of the information to the matter was key:

in so far as the Respondent was in breach of data protection law for the nine month period I have referred to, it does not follow from this that the documentation was inadmissible in the [Employment Tribunal] proceedings

But one wonders if the judge might have taken a slightly different view of, instead, she had found that the Respondent was in fact in breach of data protection law for several years (rather than just nine months).

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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March 15, 2014 · 11:38 am

Analysis prompted by Morrisons “data breach”

Yesterday’s data breach involving Morrisons supermarket and its staff payroll illustrates how difficult it is properly to handle such incidents, and perhaps provides some learning points for the future. But also raises issues about what is a “data breach”

What do we mean by “data breach”, “personal data breach”, “data security breach” etc?

The draft European General Data Protection Regulation (GDPR), which continues to slouch its way towards implementation, says in its current form that

In the case of a personal data breach, the controller shall without undue delay notify the personal data breach to the supervisory authority [and]

When the personal data breach is likely to adversely affect the protection of the personal data, the privacy, the rights or the legitimate interests of the data subject, the controller shall, after the notification referred to in Article 31, communicate the personal data breach to the data subject without undue delay

“without undue delay” is, by virtue of (current) recital 67, said to be “not later than 72 hours” (in the original draft it was “where feasible, within 24 hours”). However “personal data breach” is not defined – it is suggested rather that the proposed European Data Protection Board will set guidelines etc for determining what a “breach” is.What is not clear to me is whether a “breach” is to be construed as “a breach of the data controller’s legal obligations under this Regulation”, or, more generally, “a breach of data security”. Certainly under the current domestic scheme there is, I would argue, confusion about this. A “breach of data security” is not necessarily equivalent to a breach of the Data Protection Act 1998 (DPA). To give a ludicrous example: if a gunman holds a person hostage, and demands that they unencrypt swathes of personal data from a computer system and give it to them, then it is hard to see that the data controller has breached the DPA, which requires only that “appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data” (which clearly cannot be construed as an unlimited obligation) but there has most certainly been a breach of data security.

It is unclear whether Morrisons chose to inform the Information Commissioner (ICO) about their incident, but the wording they’ve used to describe it suggests they are seeing this not as a breach of their obligations under the DPA, but as a potentially criminal act of which they were the victim: on their Facebook page they describe it as an “illegal theft of data” and that they are liaising with “the police and highest level of cyber crime authorities” (a doughnut to anyone who can explain to me what the latter is, by the way). If an offence has been committed under section 55 of the DPA (or possibly under the Computer Misuse Act 1990) there is a possible argument that the data controller is not at fault (although sometimes the two can go together – as I discuss in a recent post). Morrisons make no mention of the ICO, although I have no doubt that they (ICO) will now be aware and making enquiries. And, if Morrisons’ initial assessment was that they hadn’t breached the DPA (i.e. that they had taken the appropriate technical and organisational measures to mean they were not in breach of the seventh DPA principle), they might quite understandably argue that there was no need to inform the ICO, who, after all, regulates only compliance with the DPA and not broader issues around security breaches. There was certainly no legal obligation under current law for Morrisons to self-notify. Plenty of data controllers do, often ones in the public sector (the NHS Information Governance toolkit even automatically delivers a message to the ICO if an NHS data controller records a qualifying incident) but even the ICO’s guidance is unclear as to the circumstances which would trigger the need to self-notify. Their guidance is called “Notification of data security breaches to the ICO” but in the overview at the very start of that guidance it says

Report serious breaches of the seventh principle
Ultimately I see it boiling down to two interpretations: report a data security breach so that the ICO can assess whether it is a serious breach of the seventh principle, or, assess the data security breach yourself, and if you assess it as a serious breach of the seventh principle, report that to the ICO. This is not obligatory under the current domestic data protection law, so to an extent it is an arid discussion, but if the obligation to notify does become obligatory under the GDPR it will become much more important.
There is one domestic law under which it is obligatory to report a “personal data breach”. The Privacy and Electronic Communications (EC Directive) Regulations 2003 amended by 2011 Regulations, require a provider of a public electronic communications service to notify the ICO of
a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed in connection with the provision of a public electronic communications service
This notably does not specify that the breach has to constitute a breach of the service provider’s DPA obligations, and one wonders if this is the sort of thing that will be specified as a breach once the GDPR is implemented.
Morrisons’ notification to data subjects

The people whose data was apparently compromised in the Morrisons “breach” were its staff – it was payroll information which was allegedly stolen and misused. It appears that Morrisons emailed those staff with internal email addresses (how many checkout staff and shelf-stackers have one of those?) and then, as any modern, forward-thinking organisation might, it posted a message on its Facebook page.However, I really wonder about that as a strategy. The comments on that Facebook page seem to be threatening to turn the incident into a personnel, and public communications disaster, with many people saying they had heard nothing until they read the message. Moreover, one wonders to what extent some staff might have been misled, or have misled themselves, into assuming that the comments they were posting were on some closed forum or network. As was suggested to me on twitter yesterday, some of the comments look to be career-limiting ones, but by engaging on its social media platform, might Morrisons be seen to have encouraged that sort of robust response from employees?

Much of this still has to play out – notably whether there was any contravention of the DPA by Morrisons – but, in a week when their financial performance came under close scrutiny, their PR handling of this “data breach” will also be looked at very closely by other data controllers for lessons in case they are ever faced with a similar situation.

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December 12, 2013 · 5:44 pm

Restrictions on use of information in litigation

Rule 31.22 of the Civil Procedure Rules provides in terms that a party to litigation can only use a document disclosed to him/her by another party (in the course of those proceedings) for the purposes of those proceedings:

A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed…

The exceptions to this rule are where the document has been read to or by the court or referred to, at a public hearing, or where the other party consents to its use, or by permission of the court.

A recent judgment of Mr Justice Tugendhat deals with this rule, but also has a rather odd appearance in the wings by the Information Commissioner’s Office (ICO). The case involves an application for a strike-out of a claim by a company (“IG Index”) engaged in spread betting on financial products, which had been the defendant in proceedings in the Employment Tribunal (ET). In the course of those ET proceedings the then claimant (“Cloete” – now defendant), a former network services engineer (who, it was said, had previously raised with his then employer concerns about data security at the company) had provided the defendant company (pursuant to a disclosure order of the ET judge) with a USB stick containing lists of clients of the company (including bank payment details), which it appeared to the company had been copied or retained by the claimant in breach of covenants protecting confidential information.

Separately to the ET proceedings the company claimed orders requiring the delivery up of the documents, and was successful in gaining interim relief for this, and for destruction by Cloete of any electronic copies, ordering him at the same time to pay IG Index’s costs. Cloete complied with these Orders, while at the same time withdrawing his ET claims.

At the full hearing, at which, as Tugendhat J observed, nothing of substance was still sought by IG Index (their substantive relief having been achieved by the delivery up and destruction of the information) what remained in dispute between the parties was, effectively, costs.

However, Cloete now sought strike out on the basis that the only reason IG Index had come to know of the contents of the USB stick was through the disclosure in the ET proceedings. Accordingly, he argued, the use of that information was in breach of CPR 31.22. Tugendhat J agreed, noting, importantly, that the rule applies

to protect not only the documents themselves, but also the contents of those documents, that is to say, the information derived from the disclosed documents

So IG Index’s knowledge that Cloete had, or had had, the documents, was information derived from the disclosed documents. Accordingly, the strike out claim succeeded:

The use of the information in the present proceedings cannot be said to be for the purposes of the Employment Tribunal Proceedings…Nor is the relevant information in this case the property of the Claimant…in my judgment the use of this information for the purpose of advancing a claim for damages is plainly and obviously a breach of the prohibition

There might, it was observed, be cases where to bar a claim in circumstances such as these would give rise to an injustice, but this was not one of those cases, and, in any event, sub-rule (b) (whereby a court can grant permission for use of the material) was available to avoid any such injustice.

The Information Commissioner

What I refer to as the “rather odd” appearance in these proceedings of the Information Commissioner’s Office (ICO) arises because Cloete claimed that he hadn’t retained the information at the centre of the case from the time when he had been employed by IG Index. Rather, while he was employed, he had passed it to the ICO, to express concerns about IG Index’s data security. He only got the documents back, according to his statement to the court, when they were

sent to him by the Information Commissioner six months after his employment had been terminated…following a subject access request he made to the Information Commissioner’s Office on 17 December 2012. On 16 January 2013 the Listed Items were attached to an e-mail he received in response to that request. However, he stated that he did not appreciate at the time he received the e-mail that the Listed Items were attached

One must be careful not to make unwarranted criticism of the ICO – I note that they were not involved in the proceedings at all, and had no opportunity to challenge or clarify Cloete’s statement. However, if that statement accurately reflected what happened it would be odd, to say the least, for the ICO to return this confidential information to someone who had no apparent lawful reason to have it, and also odd that it would have been sent in response to a subject access request under the Data Protection Act 1998, which entitles someone, in broad terms, to copies of their own personal data (not that of clients of their former employer). It would be interesting to know more about this.

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August 14, 2013 · 4:28 pm

Take the train(ing)

IG policies are essential, but not much use if you don’t comply with them

In NHS and Social Care settings a standard requirement is that all staff are trained in information governance (a large component of which is data protection): “Information Governance awareness and mandatory training procedures are in place and all staff are appropriately trained” (IG Toolkit v11) and “Ensure all staff are trained, updated and aware of their responsibilities” (Local Government Data Handling Guidelines). If an organisation suffers a serious breach of data security, and the Information Commissioner’s Office (ICO) investigates, one of the first things they will look at is whether staff were appropriately trained. If they weren’t, enforcement action, possibly in the form of a monetary penalty notice, is highly likely.

It is vital, therefore, that all organisations have a policy that all relevant staff are trained (and in some organisations – like the NHS and local authorities – that will normally mean all staff).

But, policies only work if they are implemented, enforced and monitored. The ICO has recently published an Undertaking (the “last chance saloon” before formal enforcement action) signed by the Northern Health and Social Care Trust. This arose following an incident which

involved confidential service user information being faxed from a ward in Antrim Hospital to a local business in error. The information was intended for the Trust’s Community Rehabilitation Team. The referral form contained sensitive clinical data

Although the Trust had a “fax policy” (good) it wasn’t complied with (bad) but also 

The Commissioner’s investigation into the Trust revealed that despite the Trust having introduced what should have been mandatory Information Governance training for all staff, the majority of staff involved in these incidents had not received this training. This highlighted a potentially serious failing in respect of staff awareness of Information Governance policies. In particular, the failure to monitor and enforce staff completion of training was a concern.

This failure constituted a breach of the seventh data protection principle (“Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data”). It is highly likely that, if training requirements had been complied with, no action would have been (or would have been able to be) taken, because there would have been no breach.

Put simply, if a data controller can show it has complied with the seventh data protection principle, and there is an accidental data security breach – however horrendous – then (providing there are no breaches of other principles) no sanctions will arise.

It’s in every data controller’s interests not only to require appropriate data protection training for staff, but also to ensure that it has been taken.

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August 14, 2013 · 8:00 am

Poor judgement?

Public authorities need to be cautious when disclosing performance figures of their staff under Freedom of Information (FOI) laws. They need to be even more cautious when disclosing performance figures of third parties.

Imagine if your employer, or, worse, a third party, disclosed under FOI that, of all your peers, you made the most decisions in the exercise of your employment which were subsequently found to be wrong, and which had to be overturned. If in fact those figures turned out to be incorrect, you would probably rightly feel aggrieved, and perhaps question whether the failure of data quality was in fact a breach of your rights under the Data Protection Act 1998 (DPA) and of your employment rights.

That is what appears to have happened to certain judges in Scotland, according to a letter in The Scotsman today, from the Chief Executive of the Scottish Court Service. The letter points out that a previous (29 July) article in The Scotsman – “Meet the judge with the highest number of quashed convictions” (now no longer available, for obvious reasons) – was, although published in good faith, based on inaccurate information disclosed to the paper under FOI. The letter contains an apology to

Lord Carloway and Lord Hardie, who featured prominently in 
this article, for misrepresenting their position in relation to 
appeal decisions

because the erroneous disclosed statistics suggested they had had more judgments overturned on appeal than was actually the case.

Of course, the principle of judicial independence means that judges are, strictly, not employed. But as Carswell LCJ said

All judges, at whatever level, share certain common characteristics. They all must enjoy independence of decision without direction from any source, which the respondents quite rightly defended as an essential part of their work. They all need some organisation of their sittings, whether it be prescribed by the president of the industrial tribunals or the Court Service, or more loosely arranged in collegiate fashion between the judges of a particular court. They are all expected to work during defined times and periods, whether they be rigidly laid down or managed by the judges themselves with a greater degree of flexibility. They are not free agents to work as and when they choose, as are self-employed persons. Their office accordingly partakes of some of the characteristics of employment . .. [Perceval-Price v Department of Economic Development [2000] IRLR 380]

and the Supreme Court took this further in O’Brien v Ministry of Justice [2010] UKSC 34 by saying “Indeed judicial office partakes of most of the characteristics of employment” (emphasis added).

Whatever their employment status, judges’ performance figures are clearly an important matter to them, and the Scottish Court Service has a duty to maintain accurate figures (particularly when disclosing them publicly). As Wodehouse said, “it has never been difficult to distinguish between a Scotsman with a grievance and a ray of sunshine”. I imagine that the office of Mr McQueen, the day after the first article, was not filled with sunshine.

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July 31, 2013 · 7:40 am

An error of judgment

A very brief post, on something in a High Court judgment which may merely be a slip.

On 6 June 2013 a renewed application to appeal to the Employment Appeal Tribunal was heard in the High Court. The applicant, Flynn, is seeking compensation for detriment suffered by reason of the making of a public interest disclosure (the “whistle-blowing claim”) and for arrears for holiday pay. The respondent, Warrior Square Recoveries Limited (“Warrior”) made an initially unsuccessful attempt to have the claims struck out. On appeal the Employment Appeal Tribunal refused to strike out the holiday arrears claim, but struck out the whistle-blowing claim because it had not been brought within the requisite three-month time-limit. Flynn now sought to reinstate the whistle blowing claim.

Lord Justice Rimer was not impressed by the arguments to reinstate, but, rather reluctantly, found one sufficiently compelling to justify permission

The only argument that appeared to me arguably to have some legs to it was that on 21 May 2010 the applicant made a subject access disclosure application to Warrior under the Freedom of Information Act 2000, the purpose being the provision to him of information as to whether or not the defamation claim was being pursued. Warrior had 40 days to comply with the request, but it did not do so. It is said that the expiration of the 40 days marked another deliberate failure by Warrior to act, following which the tribunal proceedings were issued within three months.

With some hesitation, I regard this ground as sufficient to justify permission to appeal…

The perspicacious among you might have noticed something. Subject access, and the 40 day time for compliance, are terms not from the Freedom of Information Act 2000 (FOIA), but from section 7 of the Data Protection Act 1998 (DPA). FOIA only applies to public authorities, of which Warrior is not one. If a public authority receives a request seeking subject access under FOIA it should apply the exemption at section 40(1) and “the public authority will need to deal with it in accordance with the DPA” (Information Commissioner guidance). An employer, such as Warrior, which is not a public authority, has no such obligations under FOIA. It probably should have still, on receipt of a letter purporting to be a FOIA request, have read it and recognised it as being, rather, a subject access request under DPA (under which it does have obligations to respond). But I’m not sure I would criticise it too much for seeing the words “Freedom of Information Act”, and thinking it didn’t need a response. I’m also not sure that the failure to respond to a non-existent obligation under an Act to which the company was not subject should have counted for the purposes of deciding when the time for lodging a claim started.

As I say, this may be a transcription error, or the judge might have mistakenly cited FOIA when he meant DPA, but the fact that this point was determinative of whether to allow permission to appeal means the error (whether it was an actual one, or just in the handed down judgment) is very odd.

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July 27, 2013 · 8:57 am

Back to Blacklists

Could action taken by the ICO in 2009 still have a part to play if construction industry blacklisting has continued? (acknowledgement: Tim Turner made some of these points back in January this year)

In 2009 the Information Commissioner prosecuted Ian Kerr, the then chief officer of a body called the Consulting Association. The Consulting Association had been holding a blacklist of people within the construction industry seen as “troublemakers” (a blacklist inherited from the Economic League, as detailed in Tim Turner’s superb post on the subject) and making this information available to clients on payment of a fee. The fall-out from this continues to this day, with, on the one hand civil claims being pursued, for what I understand to be common law “unlawful means conspiracy” and defamation, and on the other hand, the reports that the Information Commissioner’s Office (ICO) has been asked by Business Secretary, Vince Cable, to investigate allegations that the practice has continued to this day, on major construction projects like the Olympic Park and Crossrail (by the way, the extraordinary testimony of Gail Cartmail of Unite, in that last link, is essential reading).

The ICO’s prosecution of Kerr was for the relatively minor (and relatively rarely enforced) offence under the Data Protection Act 1998 (DPA) of failing to register with the ICO for his processing of personal data. No other sanction was, apparently, open to the ICO at the time. This was because the current regime of civil Monetary Penalty Notices (MPNs) for serious contraventions of the DPA had not then commenced.

As Chris Pounder pointed out at the time, there is even a query, applying the strict definitions of “data” in section 1(1), whether a blacklist held solely on paper, and arranged in, say, date order (rather than by reference to individuals), is even caught by the DPA. If not, then enforcement by the ICO would not be possible. This is because “data” broadly applies only to electronically-processed information or information held as part of a filing system structured by reference to individuals or criteria relating to individuals. One hopes that any alleged blacklisters haven’t made a habit of reading Chris’s blog and subsequently exploited a loophole that remains open.

Putting to one side this “loophole” point, it is likely that any processing of personal data which unfairly and unlawfully deprived someone of employment would constitute a serious contravention of the DPA, probably causing substantial damage and distress, and thus potentially attracting an MPN. An MPN is a relatively powerful weapon in the ICO’s armoury, and in my opinion one that has been used well to drive up data protection standards and drive home the importance of data security. Whether a huge construction firm would notice a (maximum) £500,000 penalty is another matter.

And, of course, none of the money paid under an MPN goes to the victim of a serious DPA contravention (it goes to the government consolidated fund). However, it is open to a data subject in such circumstances to bring a claim in the county court under section 13 of the DPA. Compensation is available if specific damage can be shown, and, if damage can be shown, further compensation for distress can follow. It is not clear to me whether the current claims from the 2009 events contain DPA claims, but the fact that they are being reported primarily as claims for tortious conspiracy suggests that even if so, they are subsidiary to the latter.

However, there is one further sanction which Tim Turner alludes to, which might possibly be in play. When the ICO prosecuted Kerr it also took steps to close down the practice, by issuing DPA enforcement notices against fourteen construction companies who had been proved to have used the list or supplied information: Balfour Beatty Civil Engineering Limited; Balfour Beatty Construction Northern Limited; Balfour Beatty Construction Scottish & Southern Limited; Balfour Beatty Engineering Services (HY) Limited; Balfour Beatty Engineering Services Limited; Balfour Beatty Infrastructure Services limited; CB&I UK Limited; Emcor Engineering Services Limited; Emcor Rail Limited; Kier Limited; NG Bailey Limited; Shepherd Engineering Services Limited; SIAS Building Services Limited; Whessoe Oil & Gas Limited. An example of one of the enforcement notices is archived here. It required the company broadly to

Refrain from using, disclosing or otherwise processing any personal data obtained from Mr Kerr

but also to

Ensure that if any personal data relating to recruitment is obtained from a source other than the data subject, the data subject is, in so far as is practicable, provided with the information specified in paragraph 2(3) at Part II of Schedule 1 to the [DPA] in accordance with the First Data Protection Principle.

Ensure that if any personal data relating to recruitment is disclosed to a third party for use in connection with the recruitment of workers, the data subject is, in so far as is practicable, provided with the information specified in paragraph 2(3) at Part II of Schedule 1 to the [DPA] in accordance with the First Data Protection Principle.

The notices do not appear to have been effective only for a fixed period, so one is to assume that they remain effective*. If any of the firms upon which they were served have sinced breached the terms of the notice they could potentially have committed an offence under section 47(1) of the DPA. That offence is triable either-way, and anyone found guilty is liable on summary conviction, to a fine not exceeding £5000, or on conviction on indictment, to an unlimited fine. And, by section 61 of the DPA, where, as here, the notices were served on bodies corporate, the bodies’ directors and some other officers can also be guilty of the offence of failing to comply with an enforcement notice if the offence is proved to have been committed with their consent or connivance or to be attributable to their neglect.

One wonders if the ICO’s 2009 enforcement proceedings may still have some part to play.

UPDATE: 15 August 2013

*The ICO has confirmed to me that they have no record of any of the Enforcement Notices being cancelled or varied, nor of any applications to cancel or vary being received. The ICO considers that the Enforcement Notices are still effective.

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