How a DSAR Can Reveal an Unfair Disciplinary Process

I recently spoke to a client who had been suspended during a disciplinary investigation while already on a final written warning. From the start, the process appeared flawed and unfair. It felt predetermined, partly because of the behaviour of managers and partly because decisions already seemed to have been made within the business.

The individual raised a grievance. Alongside it, they submitted a Data Subject Access Request (DSAR).

The DSAR revealed information that confirmed what they had suspected. Among the documents was communication from the disciplinary hearing manager saying that dismissal would be difficult because the individual's answers and mitigation during the process were strong and credible.

So actually the discussion was not whether misconduct had occurred, but about how difficult it would be to dismiss the employee.

I'll leave the specifics there, but what I will say is that an employment tribunal is unlikely to look favourably on evidence suggesting the outcome had been decided before the disciplinary process was complete.

What is a DSAR?

A Data Subject Access Request (DSAR) gives you the legal right to ask an organisation for a copy of the personal data it holds about you. That can include emails, meeting notes, internal messages and other documents where you are identified.

Submitting a DSAR is free, and in most cases an employer has one month to respond.

A DSAR will not always uncover something significant. Many employers conduct fair processes and communicate professionally throughout. However, where concerns exist about how a disciplinary has been handled, it can provide valuable evidence and greater transparency.

A note for employers

I understand that receiving a DSAR can be time consuming. Having processed them myself during my HR career, I know they take work.

They should never be something you worry about receiving, though. If the thought of an employee reading your internal communications makes you nervous, the problem is not the DSAR. The problem is what has been written.

Throughout my HR career, I have never submitted information that I was concerned an employee would read and that should be the standard. If you run fair processes and communicate professionally, a DSAR is an administrative exercise, not a threat.

If something doesn't feel right

If you are going through a disciplinary process and something doesn't feel right, trust that instinct. You may not have evidence yet, but there are legitimate ways to understand what has happened, and a DSAR is one of them.

If you'd like to talk through your situation, you can book a coaching session with me here