Val Pitt

However, equally important are the circumstances in which a positive decision is made to process data. A recent court action explored the circumstances in which a party decided, in their own interests, to process the personal data of an individual, against that person’s interests. The issue to be considered was whether this is permissible?

The case was brought by a man who sued his former employer, the Student Housing Association for damages of £75,000. He alleged he suffered from distress, anxiety and that his employment prospects had been impacted by his former employer’s actions.

The pursuer’s court action was raised following the conclusion of separate employment tribunal proceedings. Another former employee, Mr A, had sued the housing association on the basis that he had made a number of complaints about the pursuer which had not been dealt with appropriately. The complaints included an allegation that the pursuer had used offensive and derogatory language about Mr A’s disability.

Mr A’s case was successful and he was awarded damages of £9,500. In the written tribunal decision in March 2022, the pursuer was referred to on 162 separate occasions. The nature of the case and language used in the complaints attracted press interest. Mr A’s case was reported in an article on The Sun’s website, in which the pursuer was named six times.

The pursuer argued that by failing to advise him of the employment tribunal proceedings, to provide him with copies of the tribunal bundles, or to ask him to comment on the allegations that had been made against him and provide a witness statement to be put before the employment tribunal, his former employers had breached their duty to process his personal data fairly and transparently. He claimed these failures amounted to a breach of the requirement not to process data in a way that is incompatible with the purpose for which it was collected, in accordance with Articles 5(1)(a) and (b) of the United Kingdom General Data Protection Regulations.

The housing association argued it was exempted from the requirement to comply with these provisions. It relied upon Schedule 2, Paragraph 5(3) of the Data Protection Act 2018, submitting that any disclosures of the pursuer’s personal data were made in connection with legal proceedings and for the purposes of defending legal rights. The exemption contained within that paragraph was said to trump any requirement of fairness; if it was necessary to disclose the data to defend legal rights, it can be disclosed.

Sheriff Lugton considered the meaning of the sections and noted that the pursuer’s claim was predicated on the charge that the housing association breached Articles 5(1)(a) and Article 5(1)(b) of the Regulations. However, he agreed that the effect of Schedule of the Data Protection Act referred to specifically exempted the housing association from having to comply with these provisions. Accordingly, the pursuer’s court action must fail in law, without requiring to consider the facts of whether the disclosure was “fair.”

The opinion of the court provides useful clarity that the protections normally afforded to a subject regarding the processing of personal data do not extend to the legitimate use of that data in the context of legal proceedings. While on one view this might seem apparent when applying the normal meaning of the language in the relevant sections, in practice there can remain a reluctance and perhaps understandable overabundance of caution we have referred to in previous articles, whereby legally represented parties in court actions can be hesitant to rely upon personal data, or proper requests made in the context of legal disputes are met with an insistence that a court order be obtained. This case emphasises the importance of understanding the detail of the law in this context. An incorrect decision, for example, not to deploy personal data to a party’s own detriment may have significant consequences for the proceedings as a whole.

Val Pitt is a partner at Horwich Farrelly. This article first appeared in The Scotsman.