Where an employer has breached the Data Protection Act 1998 in respect of an employee, are damages for ‘distress’� to be assessed in the same way as injury to feelings awards in discrimination cases?
No, says the Court of Appeal in Halliday v Creation Consumer Finance.
This was not an employment case; it arose out of information wrongly disseminated as a consequence of a credit agreement. However, the leading judgment of Lady Justice Arden is important to employment lawyers and HR professionals in two main respects. Firstly, as a matter of general principle, when there has been a breach of the DPA there ought to be an award of damages but the intention of the legislation was not that substantial awards should be made.
Secondly, and more importantly from an employment law perspective, Arden LJ considered that the Vento and Da’Bell line of authorities “which deal with Injury to Feelings awards in discrimination cases” ought not to apply to distress claims brought under s.13(2) of the DPA. Drawing a distinction between the two types of complaint, she stated that “discrimination is generally accompanied by loss of equality of opportunity with far-reaching effects and is liable to cause distinct and well-known distress to the complainant”�, whilst a breach of the DPA typically causes frustration by the non-compliance.