Category: Disclosure

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Anna Denton-Jones Confidentiality Disclosure Employment Law Employment Rights Act 1996 Equality Act 2010 Recruitment Rehabilitation of Offenders Act 1974 Right to Work

Reform to the Rehabilitation of Offenders Act 1974

View of the British Houses of Parliament from the river Thames, where the Employment Rights Bill is being debated

On 28 October 2023, the 1974 legislation was amended by the Crime Sentencing and Courts Act 2022 and accompanying Regulations.

In the past, some offenders were required to disclose their sentences for the rest of their lives. Now, custodial sentences of 4 years or less and of more than 4 years for some less serious crimes, will be spent “after a period of rehabilitation” of up to 7 years after the sentence has been served, provided that no further offence is committed in that period.

PenaltyPrevious Rehabilitation PeriodNew Rehabilitation Period
Community Order1 year beginning with the last day on which the order had effectNow it is the last day on which the order had effect
Custody of 6 months or less 2 years 
Custody up to 1 year 1 year
Custody of 6  months up to 30 months4 years 
Custody of more than 1 year up to 4 years 4 years
Custody of more than 30 months up to 4 years7 years 
Custodial sentences of more than four yearsNever spent7 years
Convictions for serious sexual, violent or terrorist offencesNever spentNever spent

Stricter disclosure rules continue to apply to jobs that involve working with vulnerable people.

The time frames that I have detailed are in relation to offenders who are over the age of 18. Slightly lower periods apply if the offender was under 18 at the time of conviction.

The new time periods are extended in the event of re-offending during the declaration period. A new conviction attracts its own disclosure period and the previous conviction and the new one need to be declared until the end of the original conviction’s active period or if later, the end of the new disclosure period applied to the more recent conviction.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Communication Confidentiality Disclosure Employment Law Procedural Fairness Without Prejudice

Changing what you say in protected conversations

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From time to time you may send out a letter offering an employee, via a protected conversation, a settlement package. In a case called Meaker v Cyxtera Technology UK Ltd, the employee, in receipt of such a letter marked “without prejudice” believed that that letter constituted an effective dismissal. This is because the letter set out the particular date the employer was proposing that he would leave, the different payments he would get and when. He argued that this was a sufficiently clear letter to be a dismissal when it came to bringing an unfair dismissal claim under the Employment Rights Act 1996.

The relevance of this in the Employment Tribunal was whether he had brought his claim in time. If the “without prejudice” letter did, as he said, constitute a dismissal then his claim was going to be out of time. Alternatively, if the date of dismissal was the date on which he received payment in lieu of notice and holiday payment, then his claim was going to be in time.

The Tribunal agreed that the “without prejudice” letter was an effective letter of dismissal but the employee appealed. The Employment Appeal Tribunal agreed that that letter created a clear decision to dismiss, even though it was marked “without prejudice” and enclosed a draft Settlement Agreement, without terms providing for a mutual termination not having, in fact, been agreed. In effect, both the Tribunals viewed the letter as terminating the employee’s contract unilaterally.

As always the background facts were case specific – the employee had hurt his back and couldn’t do his job but wasn’t so severely affected that he met the test for income protection to kick in. There had been numerous discussions about what to do next. The employer sent the offer letter and draft settlement following a discussion with HR and actually processed the payment in lieu of notice even though agreement had not been reached.

The first moral of the story is never ever make payments in connection with a settlement agreement until it is all sorted!

This case has, however, given me reason to go back and review the standard kind of offer letter that I see on a regular basis: where the employers will state a termination date for example, the payment in lieu of notice that might be made, payment in lieu of holiday that might be made and an ex gratia payment that might be given in addition to things like reference and other benefits like outplacement counselling.

Employers run the risk that these letters can be seen as dismissal letters (any employee who has ever been on the receiving end of such an offer letter will tell you that they feel that it’s such a strong signal from the employer that the relationship is over and that they could not in fact continue). Is it worth drafting them in a different way to account for this risk? For example, instead of setting out a termination date, you may suggest to the employee that a leaving date would be agreed when the terms of a settlement agreement are agreed – this leaves it uncertain.

Secondly, the employer may wish to clarify that in no way should the employee take receipt of the letter as indicating any intention to bring their employment to an end.

You might also decide to say that holiday pay is something that would have to be agreed once the parties have discussed what the accrued holiday actually is.

Alternatively, you need to be aware that every time you do provide such an offer letter that it is open to the employee to argue that it brings an end to their employment, despite the fact that it is marked “without prejudice” and probably subject to a protected conversation.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Confidentiality Conflict Data Protection Act 2018 Data Use and Access Act 2025 Disclosure Employment Law Video

Video | Employees sending information from their employer to themselves

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the issues that could arise when an employee sends themselves emails or information from their employer to themselves.

Anna Denton-Jones
Refreshing Law

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Acas Anna Denton-Jones Disclosure Employment Law Employment Rights Act 1996 Employment Tribunal Grievance Investigations

Does an employer have to disclose the investigation report?

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At first glance, one might think the answer to this question was rather obvious, in that the employee raising the grievance is going to want to see that the investigation has been done thoroughly and fairly in order to be able to accept that the employer is following the correct processes based on the evidence.  Indeed, if you didn’t disclose these papers to the employee, it is likely to foster distress and further antagonise what may already be the steps on the way to a breakdown in trust and confidence between the parties.

Having said that, are there circumstances in which you can decline to show the employee parts of the evidence?  It is worth noting that the ACAS Code of Practice in relation to grievance procedures does not grant a specific “right” to the employee to see witness statements or any evidence that is part of an investigation.  

The employer is likely to be having to balance the rights of the employee against the rights of others who have also been named in the report, and to whom it may also owe duties such as  confidentiality, if that were the only basis on which it could obtain evidence.

The ACAS Guide to Conducting Workplace Investigations states “if an individual wishes to see a report they have been named in, they have got a right to see any parts of the report that contains information about them or that is reliant on information they have provided”.  That makes sense because they may want to correct a mistake that you have made in quoting them or if they disagree with an interpretation that has been made by the investigator. The ACAS Guidance goes onto say “however, they should not be allowed to see private information belonging to other individuals”. Thus, you would not necessarily be disclosing to them the entire report.  It may be that in sensitive cases, where perhaps co-operation in an investigation has only been able to be obtained by witnesses being promised anonymity, certain parts of the report/statements would have to be redacted.  In such circumstances, it may be that you change the names and other identifying information to, for example, numbers or letters, say witness B etc.

Ultimately, it is down to the employer to decide what the best thing to do is in each case and we would recommend that the rationale for acting in a particular way is recorded at the relevant time, so that if it is challenged later, at appeal or through the Tribunal, there is a record of the decision-making process.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Data Protection Act 2018 Data Subject Access Requests Disclosure Employment Law Investigations Privacy

Subject Access Request during an on-going process

Data use shown on mac screen

It is not uncommon for somebody who is part-way through a process, such as a performance management process, sickness absence management process, redundancy situation or disciplinary process, to put in a subject access request under the Data Protection Act.

If the employee is off sick or because they’re at a very early stage in the process, they may not even be aware that, for example, a disciplinary investigation has commenced. Or they might not yet be aware of a complaint that’s been received, that you’re looking into that relates to them. Alternatively, you might be towards the end of the process at the appeal stage and you might have a subject access request in an attempt to look for what I call “the smoking gun” they think you have hidden from them in terms of the process so far.

I’ve even heard today of Unions using the SAR as a form of industrial unrest – launching mass employee requests on organisations as part of industrial action.

The first thing to note is that the request under the Data Protection legislation is made in an entirely different relationship with you than the relationship of employee and employer. It is made as a data subject in relation to your position as data controller governed by the rules in the data protection legislation. So, for example, given that you have 30-days under the data protection legislation to access their request and provide them with the data they have asked for, it is entirely possible that your ongoing employment processes will be moving more speedily and for example, a disciplinary hearing or a meeting might be in the diary well before that 30-day period.  There’s nothing in the data protection legislation that requires you to halt your internal employment process or wait until the SAR has been dealt with.

If you have already disclosed the information to somebody for example, as part of an investigation report or in an email notifying them of a complaint against them or as part of a pack given to them for the purposes of an appeal meeting, you have already given them that information so you’re not going to be required to give it to them again as part of the subject access request disclosure – you would just have to cross refer to what you’ve already given them.

The next thing to say about data protection is there is absolutely no substitute in any given situation for tracking through the legislation itself when it comes to determining what you’re required to disclose to the data subject and what you’re allowed to withhold. Making this assessment on the basis of some kind of ‘feel’ is not enough.

There are things you do not have to disclose. This includes:

  • anything relating to negotiations if disclosure would prejudice the negotiations
  • confidential references given by you
  • criminal investigations
  • data processed for the purposes of management planning if disclosure would prejudice the planning (such as telling the subject about a redundancy exercise before the consultation had launched)
  • anything that is protected by confidentiality to a third party or legal professional privilege.

Thus, the list of exemptions is really narrow.  It means most things are disclosable, perhaps with some redaction of bits relating to other people. We all need to bear in mind when we prepare documents that the data subject may see them in future e.g.: – email accordingly.

In your letter to the data subject, which you will send with their response to the subject access request, you need to include a detailed explanation as to how you have gone about your response to the request and why you have excluded anything.

It is important that you consider the rights of other data subjects when processing requests.  If disclosure of the information would identify another individual, you’re not obliged to comply with the request unless the other individual has consented to the disclosure of the information and it is reasonable in all circumstances to comply with the request without the consent of the other person. It is relevant to complaints and investigations – have you informed the complainant that the matter will have to be taken up with the individual? Have you informed those witnesses that have given evidence as part of the process that their evidence is going to be showed to the person that is for example, accused of misconduct?

Where you haven’t got consent, you will have to think about redaction and omitting names and taking out as much as you can that would identify somebody. The legislation itself requires you to take steps with a view to seek consent from the other individual who asks us to look at whether there is any express refusal of that consent.

Of course it is entirely possible that the individual might try and make a second access request if the first request has not revealed what they thought they were expecting and s95(3) requires us to consider whether it is a reasonable interval between the requests having regard to the nature of the data, the purpose for which it is being processed and the frequency with which the data is altered. If you’ve complied with the subject access request and given the employee the data they requested, it is highly likely that you’re going to be able to refuse a second request on the basis that nothing has changed.

Anna Denton-Jones
Refreshing Law

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Alternative Dispute Resolution Anna Denton-Jones Communication Confidentiality Conflict Disciplinary Disclosure Dispute Management Duty of Care Employment Law Employment Rights Act 1996 Grievance HR Investigations Privacy Procedural Fairness

Showing the complaint to the employee

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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