Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the various issues around data protection in relation to other people who you might be engaging with but who are not your employees.
Anna Denton-Jones
Refreshing Law
So imagine you’ve just suspended an employee and packed them off with their letter setting out the terms of their suspension. You now need to address their reporting lines and it can be tempting to write an email to staff perhaps even telling them that their colleague has been suspended. I currently have an Employment Tribunal file on my desk where the communication to colleagues that took place immediately following suspension is something that the employee has leapt on in order to claim that minds were made up, his dismissal was entirely pre-judged from the moment of suspension and that trust and confidence would have been broken at that point in time.
I suggest instead that you speak to employees. The reason that I am suggesting speaking to colleagues is that you will not then have paperwork which will form part of any data protection subject access request when it is inevitably made.
When you speak to the colleagues you should inform them that their line management is temporarily changing and explain who they are now reporting to and, if they are required to take on some of the suspended employee’s duties, state this fact. You would reference the suspended employee as being temporarily absent from work. Curious colleagues are bound to ask why but I would just say that this is “confidential”. You can always bat it back to the colleagues by saying that if it were the other way around, they would want confidentiality to be protected and when most people think about it like that, they can understand.
You may be worried about the suspended employee trying to affect the investigation in some way by speaking to their colleagues. If that is the case there is nothing wrong with you, when you have this conversation, explaining to employees that there is nothing wrong with them having purely social contact with their absent colleague but they should not be discussing work with them.
It is entirely possible that the suspended employee themselves will tell all and sundry that they are being suspended and they are being investigated. If that is the case and people are querying the position, then you are free to confirm that you would have preferred to keep the matter confidential but now that they employee has explained to them, that yes there is an investigation and they are duty bound to co-operate with that investigation if they are called to do so. I wouldn’t go into any details about what the investigation is about.
In general, I would leave it to the investigator to plan out how they are going to conduct their investigation, who they are going to speak to and to brief any witnesses in terms of issues around co-operation with the investigation, confidentiality, the fact that the suspended employee may well get to see an investigation report etc.
Anna Denton-Jones
Refreshing Law
You will be familiar with the idea that in a disciplinary process the person who is accused of wrongdoing should hear the case against them or should hear or be told the important parts of the evidence in support of that case so that they are given the opportunity to criticise or dispute that evidence and put forward their own arguments. This comes from a case of Spink -v- Express Foods Limited 1990. But what about the situation where there is a grievance investigation?
The Acas Code is silent on this issue but focuses instead on the person who has raised the complaint. However, as part of the investigation into the complaints that that person has raised, you will need to interview anyone that they have accused of wrongdoing. For example, there may be an allegation of bullying and harassment.
One option would be to simply show the person, perhaps the line manager, the grievance letter. This is the most open and transparent position and one would hope that any line manager would behave professionally, see the grievance for what it is, and be prepared to answer those allegations in full. This position accords with the concept of ‘natural justice’ – nothing is being hidden and the accused has full opportunity to have their input to what is being said about them.
However, there may be cases where there is a concern that to take this open position would perhaps inflame or fundamentally damage the working relationship between the person who has raised the grievance and, for example, their line manager. The investigator may feel that a better approach would be to not show the full letter to the person who has been accused but rather to take them through the contents of the letter through a process of questioning so that they still have full opportunity to answer what is being said, but perhaps in doing this they can soften the language a little and take some of the ‘heat’ out of the matter. If the investigator does go down this route they will need to be skilled in questioning and make sure that they do give the full picture to the person so that they are being fair to everybody. For example, it wouldn’t be appropriate to just say ‘what happened on 5th August?’ You would need to go further and ask ‘Joe Bloggs has stated that there was an argument between the two of you on 5th August. He has said that your voice was raised and that other people noticed that you were shouting. Is that true?’
If the complainant’s letter refers to complaints against a number of different people then, again, it may be sensible to separate out the allegations so that you are only interviewing an individual about those matters that are relevant to them.
In any event, if the individual (for example, the line manager) is named in a grievance letter, strictly speaking, under the Data Protection Act, they can make a Subject Access Request requesting to see the contents of the letter. For that reason, again, the employer may want to choose the most open position.
It could also be damaging, as regards the relationship between the employer and the person who has been accused (such as the line manager), if the employer does not disclose the contents of a grievance letter. The line manager may feel that something is being hidden or that they are not being given a full opportunity to answer the case against them, even though at this stage there is no hint of a disciplinary.
The employer will need to carefully weigh all of these issues before deciding how to proceed. If you have any questions please do not hesitate to contact us.
Anna Denton-Jones
Refreshing Law
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