Access to Employment Tribunal Case Files

Her Majesty’s Court and Tribunal Service
102 Petty France
London
SW1H 9AJ

Dear Ministry of Justice

Freedom of Information Request

1.Please provide me with a copy of any relevant policy or guideline
(if any) of the Ministry of Justice under which a party to an
Employment Tribunal (ET) claim may (a) obtain copies of documents -
that have been generated and processed in relation to the ET
proceedings to which they are a party - from the relevant tribunal
case file (b) view documents on the relevant tribunal case file.

2.Please state the number of times, in the period 1 October 2010 to
1 October 2011, that Her Majesty’s Courts and Tribunal Service
(Manchester) has required a party to Employment Tribunal (ET) claim
to make a Subject Access Request, under the provisions of the Data
Protection Act 1998, before the party can (a) be provided with
copies of documents - that have been generated for purposes of the
particular ET claim - from the relevant ET case file (b) view
documents, relating to the particular ET claim, on the relevant ET
case file.

Yours faithfully

Felix Labinjo

Dear Ms Gibson

Your overdue response (Answer 2) has not provided me with the
information I requested.

I did not seek confirmation regarding the number of SARs that the
employment policy team in Manchester processed in the period 1
October 2010 to 1 October 2011; I requested HMCTS (Manchester) to:

Please state the number of times, in the period 1 October 2010 to 1
October 2011, that Her Majesty’s Courts and Tribunal Service
(Manchester) has required a party to Employment Tribunal (ET) claim
to make a Subject Access Request, under the provisions of the Data
Protection Act 1998, before the party can (a) be provided with
copies of documents - that have been generated for purposes of the
particular ET claim - from the relevant ET case file (b) view
documents, relating to the particular ET claim, on the relevant ET
case file.

It is in the public interest that you address my FOI request as
phrased.

Yours sincerely

Felix Labinjo

Dear Ministry of Justice

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Ministry of Justice's
handling of my FOI request 'Access to Employment Tribunal Case
Files' dated 12 October 2011 (FOI/72819/11/PS).

To date, the MoJ has failed to supply the following information
that I requested: “Please state the number of times, in the period
1 October 2010 to 1 October 2011, that Her Majesty’s Courts and
Tribunal Service (Manchester) has required a party to Employment
Tribunal (ET) claim to make a Subject Access Request, under the
provisions of the Data Protection Act 1998, before the party can
(a) be provided with copies of documents - that have been generated
for purposes of the particular ET claim - from the relevant ET case
file (b) view documents, relating to the particular ET claim, on
the relevant ET case file.”

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/ac...

Yours faithfully

Felix Labinjo

Dear Ms MacNeil

Thank you for your letter dated 6 December 2011.

Please accept my apologies for the delay in providing a response.
This has been caused, in part, by a number of factors stemming from
the revelation that a clerk at HMCTS (Manchester) had made a false
and misleading statement on a case file for the attention of a
judge.

As you would probably have been made aware, HMCTS had initially
described the clerk’s conduct as an “administrative oversight” and
failed to address an associated complaint in accordance with its
own policy guidelines. However, since the matters that gave rise to
this FOI request, were brought to the attention of the Justice
Secretary, a Member of Parliament and senior MoJ officials, an
investigation has taken place. HMCTS have formally apologised, on
behalf of the Manchester Employment Tribunal, for the delay in
dealing with the complaint and advised that the clerk had not
followed the standard process which should be performed by all the
Tribunal administration in order to ensure that accurate
information is recorded on the internal referral stencils.

My response is now tailored to reflect these developments as well
as help in the review exercise that is taking place at senior
management levels within the MoJ:

1. The requirement for a party to legal proceedings to make a
Subject Access Request (SAR)

You say in your letter that there may be occasions when HMCTS may
require a party to legal proceedings to make a Subject Access
Request (SAR) in order to access the relevant case file.

First, it is unclear whether this hitherto unknown criterion,
practice or condition is founded in any MoJ policy. HMCTS
(Manchester) is already on record as stating that there were no
specific policies, procedures or guidance in this regard.

Secondly, the inherent danger of applying such a requirement,
supposedly for operational reasons, is that executive objectives
are given precedence over judiciary rules or the interests of
justice.

As you are aware, the response to a SAR can take up to 40 calendar
days. In the foreseeable circumstance that a party to legal
proceedings must lodge an application for a review of an ET
judgement within 14 days, or lodge an appeal with the Employment
Appeals Tribunal (EAT) within 42 days, and the only source of fresh
evidence that satisfies the Ladd v Marshall principles is on the
relevant tribunal case file, the requirement to make a SAR
potentially frustrates the appeal process. This could be in breach
of Article 6(1) of the European Convention of Human Rights (ECHR).

Even where such a criterion, practice or condition is founded in
MoJ’s policy, how can such a requirement, in the applicable words
of His Honour Judge Prophet, “…..meet the overriding objective in
Regulation 3 [of Employment Tribunals (Constitution and Rules of
Procedure) Regulations 2004] of dealing with a case justly and
ensuring that the parties are on an equal footing? How does it have
proper regard to the fact that Employment Tribunals are frequently
approached by claimants who are not legally represented? ….How can
principles of considering prejudice to the Claimant and the
Respondent be taken properly into account?...” [Obiter: Grimmer v
KLM Hopper UK [2005] IRLR 596]

HHJ Prophet also warned that it is a very serious step to deny a
Claimant, or for that matter a Respondent, the opportunity of
having an employment rights issue resolved by an independent
judicial body.

In In Grant v In 2 Focus Sales Development Services Ltd [All ER (D)
281, 2007], HHJ Elias remarked: “…The right of an individual to
take proceedings in a court should not be restricted or limited
save where the claimant falls foul of restrictions which have been
clearly and unambiguously spelt out…”. The former President of the
EAT went on to say that the misguided notion that administrative or
executive decisions are free from legal control was laid to rest a
long time ago, as the burgeoning development of judicial review
graphically demonstrates.

2. Denial, or qualification, of the right of access under the Data
Protection Act 1998.

Your letter of 6 December appears to suggest that, even when a
Claimant or Respondent has complied with the HMCTS requirement to
make a SAR, his/her right of access to personal data on relevant
filing systems may be denied, or qualified, on the grounds “..the
FOIA does not provide that a person is entitled to access the
premises of the data controller and it is therefore not MoJ policy
to invite or allow a requestor to enter our premises to view such
documents...”

Clearly, such a caveat is at odds with MoJ’s own policy guidelines
which state: “There is *no limit* to the right of access to
personal data held electronically under the DPA. This includes
information stored on database records, word documents, e-mail
systems, audio recordings (e.g. of telephone conversations) and
CCTV systems.” [Emphasis added]. The guidance provided by the
Information Commissioner’s Office (ICO) is also clear: “..The right
of access is one of the cornerstones of Data Protection legislation
and there are no exemptions from the right of access where civil
legal proceedings are contemplated or ongoing….”

In emphasising the importance of the statutory rights of data
subjects to access data on the relevant filing system, the ICO’s
guidance adds “….it has been suggested that recent case law, and in
particular Durant v Financial Services Authority [2003] EWCA Civ
1746, provides authority for data controllers to refuse to comply
with a subject access request where the applicant is contemplating
or has already begun legal proceedings…..The Commissioner does not
accept this proposition…..” The failure to comply with a subject
access request in such circumstances will, unless an exemption
under the Act applies, amount to a breach of the Sixth Data
Protection Principle.

Section 35 of the DPA is also clear in that personal data are, in
any event, exempt from the non-disclosure provisions where the
disclosure is necessary for the purpose of, or in connection with,
any legal proceedings (including prospective legal proceedings) or
for the purpose of obtaining legal advice.

3. The response to my FOI request of 12 October 2011.

You have confirmed that, for the period 1 October 2010 to 1 October
2011, no records exist of the ET office in Manchester having asked
any party to legal proceedings specifically to make a SAR in
response to a written request to view the relevant case files,
and/or in order to obtain copies of documents therein. You have
also confirmed that that there was no business requirement for
HMCTS to retain this type of information.

For the sake of completeness, please confirm that the 22 SARs that
HMCTS (Manchester) recorded as having been processed during the
stated (i.e. from 1 October 2010 to 1 October 2011) were not from
parties that were involved in legal proceedings. You may wish to
provide your answer as supplementary comment to this FOI request.

Finally, it has been suggested that a remedy, similar to that in
Dodd v Bank of Tokyo-Mitsubishi, may be available to any party who
has been unable to lodge an appeal, in time, on the grounds that
s/he was unable to obtain the fresh evidence that could only be
obtained from a tribunal case file.

My short answer to this absurd extrapolation of circumstances is
that such comparison is farfetched. The overriding objective and
the interests of the administration justice must remain paramount
and must neither be fettered, for seemingly executive or business
requirement reasons, nor subject to the whim of any civil servant.

I am now happy to close this FOI request. I hope my comments prove
to be useful during the review exercise - and the debate - that
this FOI request has brought about in terms of the pertinent issues
of public interest.

Yours sincerely

Felix Labinjo