Www.emlawshare.co.uk Keeping a lid on it post Saville, Haringey and the rest… David Potter – Freeths LLP Hayley Prescott – Browne Jacobson LLP

www.emlawshare.co.uk

Keeping a lid on it post Saville, Haringey and the rest…

David Potter – Freeths LLP

Hayley Prescott – Browne Jacobson LLP


Today’s session

• Lessons from the Shoesmith case• Conduct of investigations and disciplinaries• Public sector settlement agreements and gagging

clauses• Covert recordings• Social media• Whistleblowing• FOIA and DPA


Sharon Shoesmith

• Unique case• Baby P• Removed from statutory position by Secretary of

State• Sacked by Haringey• Judicial review – High Court• Court of Appeal• Outcome


Lessons from Shoesmith case

• Sufficient investigation• Defects in procedure• Particularise your case• Predetermined outcomes• Balance all factors


Investigations and Disciplinaries

• Overview of both, highlighting common areas of difficulty and concern


Investigations 1

• Consider informal approach first• Formal procedure: serious breach or informal

approach failed– Investigate without delay– Investigatory interview– What if employee admits guilt?


Investigations 2

• How much investigation is required?• Who should conduct it?• How should it be conducted?• Concluding the investigation• Common mistakes


Disciplinary hearings

• Write to employee• When should the hearing be held?• Are witnesses allowed?• Right to be accompanied


The hearing

• Give employee opportunity to respond to allegations

• Role of companions• Making the decision• Further investigation?• Legal test• Sanctions• Informing the employee


Investigations and disciplinaries


Settlement Agreements and the Public Sector• Parliament concern over use in civil service• Confidentiality clauses – ‘gagging’ • Baby P


‘Gagging’ clauses

• National Audit Office: confidentiality clauses included in 88% of agreements

• Cannot stop someone blowing the whistle


Special severance payments

• Treasury approval• March 2010 – March 2013: 1,053 approvals

(£28.4m)• BBC, local councils, police not included


Covert recordings

• Vaughan v London Borough of Lewisham

Whilst the practice was distasteful this does not necessarily render evidence inadmissible. Party wanting to adduce should make a specific application seeking permission with transcript and explanation of relevance


Covert recordings

• Chairman and Governors of Amwell View School v Dogherty

Covert recordings admissible but private deliberations of panel were not. Balance between competing public interests might have been different if the claim had involved discrimination.


Covert recordings

• Williamson v Chief Constable of the Greater Manchester Police

Employee not allowed to rely on covert recordings of capability meeting to support his disability discrimination claim.


Covert recordings

• Punjab National Bank v Gosain• Recording of private discussions

allowed.Comments of managers were not part of the deliberation of matters in the disciplinary and grievance hearings.


Covert recordings

• Adopt a policy?• Allow open recordings?• Practical measures

- Don’t allow anything to be left in room

- Move to different room to deliberate


Social Media

• Gosden v Lifeline Project Ltd

Drugs welfare worker expressed sexist and racist views in email to friend from home computer –dismissal fair

• Preece v JD Wetherspoons plc

Employee made rude comments about customers on Facebook – dismissal fair as ET did not accept only seen by limited number of friends


Social Media

• Taylor v Somerfield

Employee posted YouTube of colleagues fighting with plastic bags. No link to employer and 8 people viewed - Unfair dismissal.

• Benning v British Airways plc

Offensive footage and postings on YouTube Employee denied it was him.


Social Media

• Teggart V TeleTech UK Ltd

Employee posted vulgar comments about fellow employee on Facebook- dismissal fair.

• Smith v Trafford Housing Trust

A Christian employee was entitled to express his views about gay marriage on Facebook. It did not constitute misconduct.


Social Media

• Witham v Club 24 Ltd

Derogatory comments about customer on Facebook –dismissal unfair as comments relatively “minor” and nothing to suggest client relationship harmed.

• Walter v Asda Stores Ltd

Comments made by store manager on Facebook did not justify dismissal.


Social Media

• Crisp v Apple Retail

Dismissal of employee posting comments on Facebook was fair.

• Trasler v B&Q

Facebook comments but dismissal unfair.• Weeks v Everything Everywhere Ltd

Dismissal for Facebook comments was fair where warning and adverse reaction by employee.


Social Media

• Need for clear policy• Link to other Council policies e.g. discrimination

and bullying • Consistency of treatment• Exercise of discretion – How bad is it?


Whistleblowing• Law changed on 25 June 2013

• To gain protection employee must:

- have disclosed information

- information must relate to

- criminal offences

- breach of any legal obligation

- miscarriages of justice

- danger to health & safety of any individual

- damage to the environment

- deliberate concealing of information about any of the above


Whistleblowing

• To gain protection :

- Employee must have reasonable belief that the

information tends to show one of the relevant

failures

- the disclosure must also be a protected

disclosure• The disclosure no longer needs to be made in

good faith


Whistleblowing

• To be a protected disclosure PIDA encourages disclosure to the employer

• Disclosures to a “responsible” third party or a

“prescribed person” likely to gain protection• Wider disclosures (the media) will only qualify if

certain conditions are met


Whistleblowing

• Before 25 June 2013 no need for “public interest • Parkins v Sodexho

Breach of legal obligation included breach of employee’s own contract of employment

• Tactical disclosures• Impact limited by need for good faith


Whistleblowing

• Post 25 June 2013• Disclosure will only be a qualifying disclosure if

the employee reasonably believes that the disclosure is “in the public interest”


Whistleblowing• Wider disclosures• Employee must

- reasonably believe that the information

disclosed was true

- not for gain

- have previously disclosed to employer or reasonably believe they will

be subjected to a detriment or evidence will be concealed or destroyed

- in all the circumstances must be reasonable to make the disclosure


Whistleblowing

• Protection from detriment (even former employees)

• Automatic unfair dismissal (interim relief available)

• No cap on compensation (injury to feelings available)

• New adjustment where lack of good faith (up to 25%)


FOIA and Subject Access Requests• Freedom of Information Act 2000• Subject Access Requests under the Data

Protection Act 1998


Handling Subject Access Requests• Few cases in this area so quite untested• Number of exemptions which should be considered first as may be able

to refuse• Durant v FSA [2003]

– Just because a person is named in a document doesn’t mean it is personal data

– Information has to be biographical in significant sense

• Ezsias v Welsh Ministers [2007] – archived information on a number of different sites– Authority for reasonable and proportionate search– Factors = cost, time, difficulty, size of organisation


Handling FOIA Requests• Consider whether need to comply

– Limit on cost of complying - £450– Vexatious requests

• Consider what exemptions are available• Consult with other parties who have shared requested information. They

may be entitled to exemptions if you aren’t• Entitled to “information” so needn’t be in original form and can be

redacted• If relying on an exemption you need to say what information is being

withheld and why in any response– Document decision making process in case this is challenged

Documents

Www.emlawshare.co.uk Keeping a lid on it post Saville, Haringey and the rest… David Potter – Freeths LLP Hayley Prescott – Browne Jacobson LLP