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 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