I think this discussion is failing to take account of other legal obligations that an employer has to a worker in this situation in order to avoid unfair dismissal. The employer has obligations to consult collectively or individually, where practicable to offer alternative employment and to show that selection criteria are fair. A consultation in which insufficient information is offered about proposed selection criteria is likely to be a (more than usually) phoney consultation. Where criteria discriminate on grounds of race, gender, disability etc directly or indirectly (in some cases), they will be unlawful and automatically unfair. Discrimination gives workers other legal tools for seeking information. So I fail to see how information that in most cases an employer is obliged to disclose to an affected employee anyway can be subject to an exemption. On the other hand since this information needs to be disclosed as part of the redundancy process, it shouldn't be necessary !
or appropriate to use an SAR to get it (although if it appears an employer is not being frank it might assist in getting behind the official story).
If the redundancy is bogus, the chances are the employer is going to cross the worker's palm with enough silver to shut them up and get them to renounce all claims (although I'm not sure this would prevent pursuit of a case of unlawful discrimination).
Paul
> -----Original Message-----
> From: Duncan Smith [SMTP:[log in to unmask]]
> Sent: Wednesday, February 13, 2002 8:41 AM
> To: [log in to unmask]
> Subject: Re: Compulsory redundancy
>
> David Wyatt wrote:
>
> <For redundancy I understood it is the jobs being identified as
> redundant first. It then follows that after this assessment the
> incumbent may have no job. Selection processes do not therefore
> necessarily have to use personal data.>
>
> Agreed, this is the original basis for arguing against disclosure.
>
> <A selection at individual level would occur when you have multiple
> identical jobs, say cut from 10 to 5 jobs and you have to choose from
> the 10 current incumbents. >
>
> OK, now this is more tricky, this is going to use personal data, but the
> fact that it uses personal data does not in my view mean that the
> original selection criteria need be disclosed as this remains a job
> based decision.
>
> <If the Management planning /forecasting exemption (Sch 7) is argued to
> protect the planned redundancy list from SAR you still have to be able
> to justify, if challenged by the OIC, how fufilling a subject access
> request would predjudice that planning / forecasting process.>
>
> If the scale or the reason(s) for the redundancy e.g. half the work
> force, loss of major contract became public knowledge, this could affect
> financial instruments (shares). I would argue then that this information
> would be prejudicial to disclose and withhold under Sched. 7
>
> <All SAR made by employees to any employer where they as a data subject
> are on a redundancy selection list at the time of the request would
> appear to either always be either exempt or disclosable. Which is it?>
>
> Not sure it is as black and white as this. It would be hard to argue
> against a disclosure that an individual is 'on the list'; the details of
> the decision process are however I believe subject to exemptions. Time
> to demonstrate 'prejudice'!
>
> "Personal data which consist of records of the intentions of the data
> controller in relation to any negotiations with the data subject are
> exempt from the subject information provisions in any case to the extent
> to which the application of those provisions would be likely to
> prejudice those negotiations"
>
> Duncan S Smith
>
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