The Claimant in the Employment Tribunal, a police officer serving with the Respondent Force, made a number of subject access requests to the Respondent’s Data Access Unit (DAU). One of these, made in 2017, (SAR1) was for all emails sent within the Force ‘with a connection to me’ between 2002 and 2017. The Respondent was aware that he considered that he had been the victim of unlawful discrimination, and intended to (and did) bring Employment Tribunal claims.
SAR 1 was referred by the DAU to the Anti-Corruption Unit (ACU), which was the body which kept an archive of all emails sent within the Force. Following an initial response from the ACU to the DAU, the Claimant was informed that his request was too wide, and that he needed to identify the names of senders and recipients that he wanted searched. The DAU was told by the ACU that its software at the time did not enable an automated search to be conducted for any email mentioning the Claimant, regardless of who sent or received it. In January 2018 the Claimant was given access to the emails that had been provided to the DAU by the ACU in November 2017. The Tribunal accepted that, to comply with GDPR from May 2018, the ACU upgraded its software, which improved its automated email search capabilities. Thereafter, following further correspondence about his request, a further batch of emails was provided to the Claimant in October 2018.
The Tribunal, by a majority, found that the Claimant had been victimised, in three respects, by the conduct of the Data Access Manager, referred to as Mr D, in connection with SAR 1. The premise of all these findings was the majority’s conclusion that the ACU in fact had the capability to find the further batch of emails provided in October 2018, when it first responded to SAR1 in November 2017; that the limitations of the ACU’s software prior to the GDPR upgrade did not truly explain why that second batch of emails had not been disclosed with the first batch; and that Mr D knew this to be the case. This conclusion was relied upon by the majority to support the conclusion that Mr D’s impugned conduct was reasonably viewed by the Claimant as detrimental treatment; and that the burden shifted to the Respondent to show that such conduct was not because of the Claimant’s protected acts; and that, as Mr D had not been called as a witness, the Respondent had not discharged that burden, so that findings of victimisation followed.
On the Respondent’s appeal, it was held:
(1) The majority did not have a proper basis, on the evidence before the Tribunal, and facts found, to conclude that the explanation given, for why the ACU was not able to retrieve more emails than were produced, prior to the software upgrade, was not true. The majority rested their conclusion on their understanding of what the ACU existed to do, but the facts found about that, whether generally or in relation to the email archive, did not properly support such an inference. The majority were also wrong to draw an adverse inference from the failure of the Respondent to call a witness from the ACU (in addition to one from the DAU) when the pleaded victimisation claims did not identify that the conduct of the ACU in relation to SAR1 was specifically being criticised. The finding that the explanation given by the ACU was not true was therefore perverse. As it was conceded by the Claimant that the findings of detrimental treatment all rested on that finding (and the inference that Mr D knew that the ACU could have retrieved the October emails at the outset), those findings of detrimental treatment could not stand.
(2) In any event, the matters referred to by the majority as supporting a shifting of the burden of proof could not, separately or cumulatively, properly support the shifting of the burden. In addition, in considering whether the burden shifted in relation to Mr D’s impugned conduct, the majority should have considered the picture painted by all of the Tribunal’s relevant findings regarding his conduct, and his interactions with the Claimant, in relation to SAR1. Consideration of the whole picture reinforced the conclusion that there was no proper basis for the majority’s finding that the burden of proof shifted to the Respondent.
The appeal was accordingly allowed.
Citations:
[2021] UKEAT 0330 – 19 – 1501
Links:
Jurisdiction:
England and Wales
Employment
Updated: 09 December 2022; Ref: scu.661680